Cornell University Library KFN5205.J58 1903 V.I The law and practice In the Surrogates' 3 1924 022 804 219 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022804219 THE LAW AKD PRACTICE IK THE SURROGATES' COURTS IN THE STATE OF NEW YORK SECOND EDITION BEING A COMMENTARY CHAPTER XVin. OF THE CODE OF CIVIL PEOCEDURE BY HENRY WYNANS JESSUP, A.M., LL.M. OF THE NEW YOBK CITY BAB FOBMEELY PBOFESSOB OF PEACTIOE UNDER THE CODE, IN THE LAW School of the Univebsity of the City of New Yobk Vol. 1. THE BANKS LAW PUBLISHING CO. 21 MURRAY STREET, NEW YORK 1903 B'7^35'^ COPTKIGHT, 1899, By the banks law publishing CO. COPYKIGHT, 1903, By the banks LAW PUBLISHING CO. nf GEATEFUL APPRECIATION OF THE KINDNESS OF THE LATE HON. ELLIOTT F. SHEPABD, LL.D., TO WHOM I OWE MT START IN NEW TOBK CITY; AND IN MEMORY OF THE KINDLY COUNSEL AND ENCOURAGEMENT OF THE LATE NOAH DAVIS WITH WHOM I STUDIED AND PRACTISED LAW, THIS WORK IS INSCRIBED. PREFACE TO SECOND EDITION. The work of revising tlie first edition of this book has been in continuous progress since May, 1899, when the original manu- script went to press. Originally undertaken merely in order to keep the author's copy up to date, the numerous decisions and the many important changes in the Code by our Legisla- ture and the demand upon the publishers for the work have ne- cessitated the preparation and publication of a second edition. The work has been so thorouglily revised as to require its be- ing entirely repaged and printed from new plates. The great- est change is in the chapter upon the Transfer Tax Law in which branch of the law the Legislature has displayed its great- est industry. In the preparation of this chapter I have had the benefit of the experience and services of Mr. Samuel T. Carter, Jr., who has had peculiar opportunities of familiarizing himself with the law and its development and changes as well as in constant practice in cases involving questions under the act. I have no apology to make for presenting in this edition the changes made by him in ray original work, which I have adopted almost without alteration. I also desire to express my indebtedness to Mr. Joseph T. Brown, Jr., for assistance upon the index and for his careful and remarkably clear summary of the law relating to the con- struction of wills, which will be found at the close of cliapter 8 of Part III, which summary I have also adopted as it stands. Witli the exception of this assistance, I have personally ex- amined ever}' case decided since the issuance of the first edition and have endeavored to give to the profession in the very lan- guage of the decisions, the law as declared by the courts ap- plicable to proceedings in the Surrogates' Courts in the State of New York. The plan of the work has been unchanged ; the Code sections are still differentiated in type so that the work can still be kept up to date by the code amendment pasters. The index has been, it might be observed, a labor of love, and the author has diligently endeavored to prepare that which shall VI PBEPACE TO SECOND EDITION. make available, without too much effort, the contents of the book. It is an analytical index and contains every possible heading under which the particular subjects have been thought likely to be looked for by the practitioner. The author begs to suggest that the usefulness of the book may be increased toj those who have it by a careful use of the table of Code sections. In this table the pages upon which the section is actually quoted are printed in italics as distinguished from the pages upon which it is merely referred to or discussed. So far as has been possible, the cases under any particular section are grouped in that part of the book in which it is actually quoted. At the request of many of those using the work, a table of cases has been prepared. If it were appropriate, I should have liked to set forth here some reasons why, in my judgment, the jurisdiction of the Sur- rogate should be enlarged. It seems strange that he should be deemed equal to construing a bequest, and not a devise, though the latter be given in the same will and the same language. The Supreme Court by its appellate divisions would safeguard the interests affected by such additional power, if conferred; upon men, who by daily study and experience, grow peculiaily capable of dealing with all problems of testamentary law. I am sensible of the fact that a work of this character is not an addition to literature, but if the work shall make easier the task of the practitioner under our Code in ascertaining what the courts have held to be the intent of the Legislature in fram- ing and reframing the Code, the eight years during which I have been occupied in it wiU not have been wasted. Henry W. Jessup. December 1, 1902, 80 Broad Street, New York City. PREFATORY NOTE TO THE LAW AND PRACTICE IN STJKKOGATES' COTJETS IN THE STATE OF NEW YORK. I have read with great care the proofs of the work entitled " Law and Practice of Surrogates' Courts in the State of New York," by my former partner, Henry Wynans Jessup, of the New York Bar, with much pleasure and instruction. He has succeeded in collating and compiling the statutes, and decisions of the courts relating to the subject-matter of his work with marked clearness and fullness. The work has been done in such a way as to be extremely helpful to practitioners in those courts as well as to the courts themselves, and the mode of do- ing so, and particularly of citing authorities and of arranging them with such clearness that they speak for themselves, renders the book peculiarly valuable. I have no hesitation in recommending the work not only to all the members of the legal profession who practice in Surro- gates' Courts, but by reason of its clearness of statement to executors, administrators, trustees and guardians and others who are interested in the administration and distribution of es- tates. I am sure this book will be gl-eatly serviceable to them all because of such simplicitj' and clearness of its arrangement of the authorities and of the law on all subjects involved. I hope the work will have the wide circulation it deserves. Noah Davis, 46 West 56th Street, New York City. March, 1899. vU. AUTHOR'S PREFACE TO FIRST EDITION. This work was begun four years ago, at the request of Mr. David Banks. It is practically a commentary on Chapter XVIII of the Code of Civil Procedure, which defines the practice in the Surrogates' Courts in tlie State of New York. So far as practicable the text has been worded in the lan- guage of the decisions. Earnest effort has been made to make discriminating citations to the various propositions in tlie text, both of the leading, and of the most recent adjudications. The wholesale citing of a large number of cases to a point clearlj' decided in one authoritative case has, in the author's profes- sional experience, proved a hindrance rather than a help, and has, therefore, been avoided here. The text is differentiated by appropriate type from the Code sections commentated. The table of Code sections will indi- cate where any given section is quoted. Should amendments be enacted by the Legislature to any sections in Chapter XVIII, the new section can be put in, in the form of adhesive slips, and the work thus kept constantly up to date. The forms, inserted as precedents throughout the text, have been carefully prepared or adapted from those in use in the various Surrogates' offices in the State. They are inserted in the text, as in that way the discussion of the procedure is il- lustrated and made clearer. Nearly every Surrogate has of- ficial forms in his office, which as a general rule it is advisable to use, in order to expedition of business. Precedents in a text-book should never be blindly followed. They can only be useful as skeletons, or guides in framing the successive pro- ceedings. The precedents given in this work are somewhat fully anno- tated. Here and there the discussion had been compacted into the form of analytical tables, which, it is hoped, will prove of serv- ice. Such, e. g., are the tables under the Transfer Tax Law. No apology is thought necessary for the size of this commen- ix X authoe's preface to fiest edition. tary, which was necessarily caused by the plan of the work as well as the distressing lack of harmony between the decisions on many detail points by different Surrogates, as well as by the various Appellate Courts. I am indebted for valuable aid and suggestions to Hon. Theodore H. Silkman, Surrogate of Westchester County ; to Mr. Emmett R. Olcott, of the New York bar, for assistance in preparing the transfer tax precedents ; to Mr. Edward W. Bonynge, Deputy Chief Clerk of the New York Surrogates' office, for valuable suggestions as to the practice on account- ings ; to Mr. Jacob Washburn, Probate Clerk in the same office, for hints as to the practice on probate proceedings ; to Mr. Arthur D. Wing, for assistance in classifying the cases exam- ined ; to Mr. T. F. C. Demarest for expert aid in the prepara- tion of the index ; also to the Surrogates in the various counties and to the Public Administrator's Counsel in New York City, by wliose courtesy I was furnished with full sets of their official forms. I am also indebted to Hon. Noah Davis, with whom I was associated when I undertook this work, for kindly encourage- ment and suggestion in regard thereto. Henry Wynans Jessdp. April 19, 1899. 30 Broad Street, New York City. TABLE OF CONTENTS. [the befbkences are to faqes.] Note. — The general iudex contains an analysis of the discussion under the various topics and subtopics; there is also an index to precedents or forms, and an additional index in which will be found references to every part of the work in which the sections of the Code are quoted, cited or discussed. PAET I. Surrogates' Courts In tbe State of Netr York. Fage Inteodtjctokt Definitions, 1 CHAPTER I. SUKEOGATES AND THEIE COUETS, 4 CHAPTER II. Jueisdiction of Sueeogates' Couets ; its Natuee and Ex- tent, .......... 34 CHAPTER III. Cleeks and Stenogeaphees in Sueeogates' Cockts, . 61 PART II. General Procedure In Surrogates' Conrtt. CHAPTER I. Peoceedings in Sueeogates' Cocets, .... 70 CHAPTER II. Paeties to Peoceedings in Sueeogates' Courts, . . 99 zi XU TABLE OF CONTENTS. CHAPTER III. Page Hearings and Trials in Surrogates' Courts, . . . 136 CHAPTER IV. Decrees and Orders, 179 CHAPTER V. Appeals from Decrees and Orders, .... 227 CHAPTER VI. Costs and Allowances in Sltirogates' Courts, . . 272 PART III. Probate of Wills. CHAPTER I. Proceedings Preliminary to Probate, .... 298 CHAPTER II. Revocation of "Wills, 304 CHAFPER III. Procedure op Probate Proceedings, .... 324 CHAPTER rV. Contested Probates, 367 CHAPTER V. Admitting the Will to Probate, ..... 481 CHAPTER VI. Revocation op PeobaSe, 500 TABLE OF CONTENTS. xiii * CHAPTER VII. Page Pbobate of HErasHip, 529 CHAPTER Vin. Construction of Wills, 538 CHAPTER DC. Establishing Will by Actiqn, 663 PART IV. Letters and Bonds. CHAPTER I. Letters Testamentary, 680 CHAPTER II. Letters of Administration with the Will Annexed, . 620 CHAPTER III. Temporary Administration, 644 CHAPTER IV. Letters of Administration, ...... 674 CHAPTER V. Administration de bonis non, 722 CHAPTER VI. Ancillary Administration, 731 CHAPTER Vri. Executors and Administrators of Deceased Executors AND Administrators, .... . . 774 CHAPTER VIII. Public Administration, 784 XIT TABLE OF CONTENTS, CHAPTER IX. Pag* Bevocation of Letters and Removal of Ejcecutobs anp Administkatoes, .,,..., 835 CHAPTER X. BONPS OF ExKCtJTOBS, APMINISTHATOHS, ETC., . . . 878 PART T. Adoption. CHAPTER I. JCEISDICTION OF THE SrEEOGATES, 980 PART VI. Administration by Executor and Administrator. CHAPTER I. ASCEETAINING THE ESTATE, 950 CHAPTER II. ASCEETAINING THE DeBTS, 1007 CHAPTER m. Payment of Debts, 1040 CHAPTER IV. Proceedings to Compel Payment of Debts, . , 1072 CHAPTER V. The Transfer Tax Procedxjre, 1088 CHAPTER VI. Payment of Legacies, 1182 CHAPTER Vn. Disposition of the Decedent's Real Property foe the Payment of Debts and Funeral Expenses, . . . 1220 TABLE OF CONTENTS. XV PART Til. Testamentary Trustees and Guardians, CHAPTER I. TESTAMENTARY Trustees, 1329 CHAPTER n. GUASDUNS, 1869 PART Tin. Accountings and Distribution. CHAPTER I. AcconmNG foe the Estate, ...... 1416 CHAPTER n. Preparing the Account, . .... 1439 CHAPTER in. The Pkocedure on Accountings, ..... 1455 CHAPTER rV. Statutes of Distribution and Descent, . . . 1502 CHAPTER V. Various Limitations Applicable in Matters Affecting Decedents' Estates, 1521 Index of Code Sections, Quoted oe Cited. Index of Forms and Precedents. Table of Cases Cited and Discussed. General Analytical Index. SURROGATES' COURTS IN THB STATE OF NEW YORK. PART I. INTRODUCTORY DEFINITIONS. The statutory definitions should be carefully read before be- ginning the study of chapter 18 of the Code of Civil Procedure. These definitions are contained in § 3514:. Definition of expressions used in this chapter. In construing the provisions of this chapter, the following rules must be observed, except where a contrary intent is ex- pressly declared in the provision to be construed, or plainly apparent from the context thereof : 1. The word, "intestate," signifies a person who died without leaving a valid will ; but where it is used with re- spect to particular property, it signifies a person who died without effectually disposing of that property by will, whether he left a will or not. 2. The word, "assets," signifies personal property appli- cable to the payment of the debts of the decedent. 3. The word, " debts," includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action ; and the word, " creditor," includes every person having such a claim or demand, any person having a claim for expense of ad- ministration, or any person having a claim for funeral ex- penses. (See chap, 120, Laws, 1900.) 4. The word, " will," signifies a last will and testament, and includes all the codicils to a will. 5. The expression, " letters of administration," includes letters of temporary administration. 6. The expression, " testamentary trustee," includes every 1 (1) STTEROGATES COURTS. person, except an executor, an administrator with the will annexed, or a guardian, who is designated by a will, or by any competent authority, to execute a trust created by a will ; and it includes such an executor or administrator, where he is acting in the execution of a trust created by the will, which is separable from his functions as executor or administrator. 7. The word, " surrogate," where it is used in the text, or in a bond or undertaking, given pursuant to any provision of this chapter, includes every officer or court vested by law with the functions of surrogate. 8. The expression, "judicial settlement," where it is ap- plied to an account, signifies a decree of a surrogate's court, whereby the account is made conclusive upon the parties to the special proceeding, either for all purposes, or for certain purposes specified iu the statute ; and an account thus made conclusive is said to be " judicially settled." 9. The expression, " intermediate account," denotes an account filed in the surrogate's office, for the purpose of dis- closing the acts of the person accounting, and the condition of the estate or fund in his hands, and not made the subject of a judicial settlement. 10. The expression, " upon the return of a citation," where it is used in a provision requiring an act to be done in the surrogate's court, relates to the time and place at which the citation is returnable, or to which the hearing is adjourned ; includes a supplemental citation, issued to bring in a party who ought to be, but has not been cited ; and implies that, before doing the act specified, due proof must be made, that all persons required to be cited have been duly cited. 11. The expression, "person interested," where it is used in connection with an estate or a fund, includes every per- son entitled, either absolutely or contingently, to share in the estate or the proceeds thereof, or in the fund, as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or otherwise, except as a creditor. Where a provision of this chapter prescribes that a person interested may object to an appointment, or may apply for a inventory, an account, or increased security, an allegation of his interest, duly verified, suffices, although his interest is disputed ; unless he has been excluded by a judgment, decree, or other final determination, and no appeal therefrom is pending. ,12. The term, "next of kin," includes all those entitled, under the provisions of law relating to the distribution of INTRODUCTORY DEFINITIONS. 3 personal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife. 13. The expression, " real property," includes every estate, interest, and right, legal or equitable, in lands, tenements, or hereditaments, except those which are determined or extin- guished by the death of a person seized or possessed thereof, or in any manner entitled thereto, and except those which are declared by law to be assets. The word, " inheritance," signifies real property, as defined in this subdivision, de- scended as prescribed bylaw. The expression, "personal property," signifies every kind of property, which survives a decedent, other than real property as defined in this subdivi- sion, and includes a right of action conferred by special statu- tory provision upon an executor or administrator. CHAPTEE I. SITKEOGATBS AND THEIE COTJETS. § 1. Definition. — Surrogates' Courts in the State of New York are courts of record, possessing a special and limited ju- risdiction, which extends generally over the probate of wills, the administration and distribution of decedents' estates, and the protection of the interests of infants. Jurisdiction over this latter subject is not exclusive, and its limited character must be emphasized (see § 4 below), e. g., while they have the " like power and authority to appoint a general guardian .... of an infant which the chancellor had" (§ 2821, Code Civ. Proc.) they have the power to " direct and control " his conduct only in cases specially prescribed by law. Matter of Bolton, 159 K Y. 129, 135. The Surrogate is the judge or judicial officer presiding over such a court. § 2. Surrogates' Courts in the State of New York date back to the act of March 16, 1778 (Laws of N. Y. [Jones & Varick's ed.] 23). " Before the Eevolution, the power of granting let- lers testamentary and letters of administration resided, in New York, in the Colonial Goveimor, as judge of the Prerogative Court, or Court of Probates of the colony. It was afterward vested in the Court of Probates, consisting of a single judge, and so continued until 1787, when Surrogates were authorized to grant letters testamentary, and letters of administration of the estates of persons dying within their respective counties. If the person died out of the State, or within the State not being an inhabitant thereof, the granting of administration was still reserved to the Court of Probates (L. N. Y. sess. 1, chap. 12 and sess. 10, chap. 38; Goodrich v. Pendleton, 4 Johns. Ch.552). This practice continued until the act of March 21, 1823, when the Court of Probates was abolished, and all the original powers of that court were transferred to the Surro- gates." (2 Kent's Commentaries, 410.) The act of March 16, 1778, established a tribunal known as the " Court of Probates " vested with the powers, authority and jurisdiction in testa- mentar)- matters which the governor of the colony of New (4) SURROGATES AND THEIR COURTS. . 5 York, while it was subject to the Crown of Great Britain, had and exercised as judge of the Prerogative Court, or the Court of Probates of the colony, except, however, the power of appoint- ing Surrogates. § 3. They are courts of record expressly enumerated as such by the Code. Code Civ. Proc. § 2, subd. 14. Prior to 1877 they were not deemed courts of record {People v. Carr, 100 N. Y. 236, 241), although they exercised powers only incident to and characteristic of such tribunals (see table below ; Matter of Latson, 1 Duer, 696), such, for example, as the power to punish by fine and imprisonment, which power, says Blackstone (III, 24), cannot be exercised by any other court than a Court of Eecord, adding : " The very creation of a new jurisdiction with the power of fine and imprisonment makes it instantly a court of record." But in 1877, by amend- ment to the Code, " a Surrogate's Court in each County " was added to the statutory list of courts of record. Like all courts of record a Surrogate's Court has a seal, of which the Surrogate has charge (Code Civ. Proc. § 2507) ; it can fine and imprison for contempt (Code Civ. Proc. § 2481, subd. 7) ; its acts and judicial proceedings are " enrolled for a perpetual memorial and testimony " in books of record ; and it has ever been held that, as a Court of Record, it falls within the language of the Federal statute, and has common-law jurisdic- tion to grant naturalization. Matter of Harstrom, 7 Abb. N. C. 391. § 4. Their jurisdiction is special and limited. — It has al- ways been held that the Surrogates' Courts are tribunals of limited jurisdiction. Those claiming under a decree of the Surrogate must show afiirmatively his authority to make it. Farmers' L. cfe T. Co. v. Hill, 4 Dem. 41 ; Matter of Hwwley, 104 N. Y. 250, 262 ; Matter of Randall, 152 IST. Y. 508, 516, and cases cited; Matter of Bolton, 159 IST. Y. 129, 136. The subjoined table exhibits this in detail. And the facts necessary to confer jurisdiction must always be alleged in the initial papers. Potter v. Ogden, 136 N. Y. 384, 396. It is well settled that, where a court has only a special lim- ited jurisdiction, which jurisdiction depends upon certain spe- cific facts, a total defect of evidence as to any one of these essential facts will make its action void. Id. See also Hewitt V. Newherger, 141 N. Y. 538, at page 543, citing Curry v. o STJEROGATES COURTS. Pringle, 11 Johns. 444; Bigelow v. Sterns, 19 Johns. 39; Murphy V. Kron, 20 Abb. N. C. 259. This case was a criminal case and related to the jurisdiction of the recorder, but the principle is applicable to the Surro- gate's Court. The higher courts at first jealously restricted the jurisdiction of this inferior court {Harris v. Meyer, 3 Redf. 450 ; Sipperly v. Baucus, 24 N. Y. 46) to its statutory powers. As time went on certain implied powers were claimed and ex- ercised ; but in 1830, the Revised Statutes (2 R. S. 220, sec. 1) denied them this reasonable extension of their powers. After specifically enumerating the powers of Surrogates' Courts (see table) the statute provided that these powers should be exer- cised in the manner prescribed in the statutes, "and in no other ; " and no " Surrogate shall, under pretext of incidental power, or constructive authority, exercise any jurisdiction what- ever not expressly given by the statutes of this State." This part of the law was short-lived, as might have been ex- pected. It soon became necessary to repeal it (Laws of 1837, chap. 460, sec. 71 ; Sipperly v. Baucus, 24 N. Y. 46 ; Campbell V. Thatcher, 54 Barb. 382), because the courts found that the exercise of certain incidental powers " was absolutely essential to a due administration of justice." Pew v. Hastings, 1 Barb. Ch. R. 452. The following table sets forth in comparative form the growth of the powers of the Surrogates' Courts up to the present time. See ahopost, chap. II, Jurisdiction. POWERS OF surrogates' COURTS. Before Bevised Statates. To take proof of the execu- tion of last wills and testa- ments, and to admit them to probate, 2 Laws of N. T. (1787) Jones & Varick's ed. 71. To grant letters testamen- tary and of administration. Ibid. To swear executors or ad- ministrators to the truth of the inventories and accounts exhibited by them. Ibid. To call administrators to account ; to decree the just and equal order of distribu- tion after the payment of debts and expenses ; to com- pel administrators to observe and pay the same; and to en- force it by execution ag^nst the person. Ibid. 1 Web- ster's Laws, 317,, 325; Sey- tnour V. Seymour^ 4 Johns. Ch. 409 ; Foster Y. Wilber, 1 Paige, 537 ; Dakin v. Hudson, 6 Cow. 221. To order the sale of real es- tate for the payment of debts when the personal estate was insufficient, and, when the real estate proved insufll- cient, to divide the proceeds after the payment of ex- penses proportionally among the creditors; to confirm all such sales and direct convey- ances to be made by execu- tors or administrators, and to order the mortgaging or leas- ing of the real estate of any testator or intestate for the same purpose when Infants so'e interested. LawsofN.Y. (1799) Andrews's ed, 724, Covered by " incidental powers." See Brick* s Estate, 15Abb.Pr. 12,33. To appoint guardians for infants as fully as the chau- oellor might do. 3 Webster (1602). 1G8. Under Bevised Statutes of 182S-1830. To take the proof of wills of real and personal estate in the cases prescribed by law: and also to take the proof of any will relating to real es- tate situated within the county of such surrogate, when the testator in such will, shall have died out of this state; not being an in- habitant thereof and not leaving any assets therein. To grant letters testamen- tary and of administration. To direct and control the conduct, and settle the ac- counts of executors and ad- miuistrators. To enforce the payment of debts and legacies, and the distribution of the estates of intestates. To order the sale and dis- Sosition of the real estate of eceafied persons. To administer justice in all matters relating to the af- fairs of deceased persons, ac- cording to the provisions of the statutes of this state. To appoint guardians for minors, to remove them, to direct and control their con- duct, and to settle their ac- counts as prescribed by law. Under Code of Civil Proced- ure, § 2472. To take the proof of wills; to admit wills to probate; to revoke the probate thereof; and to take and revoke pro- bate of heirship. To grant and revoke let- ters testamentary and letters of administration, and to ap- point a successor in place of a person whose letters have been revoked. To direct and control the conduct, and settle the ac- counts, of executors, admin istrators and testamentary trustees; to remove testa- mentary trustees, and to ap- point a successor in place of a testamentary trustee so re- moved. They may now also administer oaths. Laws of 1884, chap. 309. To enforce the payment of debts and legacies; the dis- tribution of estates of dece- dents; and the payment or delivery by executors, admin- istrators and testamentary trustees, of money or other Property, in their possession elonging to the estate. To direct the disposition of real property, and interests in real property, of dece- dents, for the payment of their debts and funeral ex- penses, and the disposition of the proceeds thereof. To administer justice in all matters relating to the atfairs of decedents, according to the provisions of the statutes relating thereto. To appoint and remove guardians for infants; to compel the payments and de- livery by them of money or other property belonging to their wards; and in the cases specially prescribed by law, to direct and control their conduct and settle their ac- counts. SURBOGATES AiJD XHEIR OOUBTS. Before Berised Statutes. To order the admeasure- ment of dower upon the ap- plication of the widow, of any heir, or of the guardian of a minor. 3 Webster (1806), 315. To hear and determine any cause touching a legacy or bequest in any last will and testament; to decree the pay- meat of it, and to enforce it by execution against the per- son. 2 Laws of N. T. {supra) 71. To record all wills proved before them with the proof thereof, letters testamen- tary and of administration granted by them with all things concerning the same, all orders or decrees made by them for the sale of real es- tate, and all instruments, writing or documents of a like nature left unrecorded by their predecessors, and to complete the unfinished busi- ness of their predecessors. Laws of 1813, 139: Laws of 1828, 130. To institute Inquiry re- specting the personal estate of intestates not delivered to the public administrator or accounted for lawfully by persons into whose hands it was supposed to have fallen. This was in 1821. They had authority to com- pel the attendance of wit- the production of wills, documents or writings and for disobedience In such cases to commit the party of- fending for contempt; and, lastly, in all matters sub- mitted to their cognizance, they were authorized to pro- ceed according to the coarse of the court having, by the common law, jurisdiction of such matters, except so far as they were restricted by statute, and they had such incidental powers as were necessary to carry those which were granted into ef- fect. Laws of 1813, 139; Brkk^s Estate, 15 Abb. Pr. 12, Under BeTlsed Statutes of 1828-1830. To cause the admeasure- ment of dower to widows. 2 R. S. 220, § 1, tit. I, 0. n, part III. Every Surrogate had power to issue subpoenas, to compel attendance of witnesses, or production of anj^ paper ma- terial to any inquiry pending in the court, and to punish for disobedience just as a court of record could. To Issue citations and com- pel appearance of parties; to enforce all lawful orders, process and decrees of his court by attachment against the persons of those neglect- ing or refusing to comply with them. To exemplify under seal all transcripts of records, papers or proceedings. To preserve order by pun- ishing for contempt. But all the powers above enumerated were to be exer- cised (1830-1837) In no manner other than that prescribed by the statute, and incidental powers were denied. After 1837 they held the same incidental powers con- ceded them before the adop- tion of the Kevised Statutes. Under Code of CItII Proced- ure, % 2472. Under the Code of Civil Procedure provision is made for an "action for dower" § § 1596-1625, which is a civil action, local and triable by jury (§ 968) and Surrogates' Courts have no longer juris- diction of it. Seu 3 Ktim- sey's Practice, p. 89. Corresponding to this enu- meration of powers is § 2481 of the Code which provides that a Surrogate in court or out of court as the case re- quires, has power: 1. To Issue citations to parties, in any matter within the jurisdiction of his court; aud in a case prescribed by law, to compel the attend- ance of a party. 2. To adjourn, from time to time, a hearing or other proceeding in his court; and where all persons who are necessary parties have not been cited or notltied, and citation or notice has not been waived by appearanco or otherwise, it la his duty, before proceeding further, so to adjourn the same, and to issue a supplemental cltar tlon or require the petitioner to give an additional notice, as may be necessary. 3. To issue, under the seal of the court, a subpoena, re- quiring the attendance of a witness, residing or being in any part of the State; or a subpoena duces tecum, requir- ing such attendance, and the production of a book or paper material to an inquiry pend- ing in the court. 4. To enjoin^ by order, an executor, administrator, tes- tamentary trustee, or guar- dian, to whom a citation or other process has been duly issued from his court from acting as such, until the fur- ther order of the court. 6. To require by order, an executor, administrator, tes- tamentary trustee, or guar- dian, subject to the jurisdic- tion of his court, to perform any duty imposed upon him by statute, or by the Surro- gate's Court, under authority of a statute. 6. To open, vacate, modify. or set aside or to enter as of a former time, a decree or order of his court; or to grant a new trial or a new earing for fraud, newly dis- covered evidence, clerical er- ror or other saftlcient cause. (The powers conferred by this subdivision, must be ex> ercised only in a like case, and in the same manner, as a court of record and of gen- eral jurisdiction ezercisea the same powers.) Upon an appeal from a determi- POWEKS or StFRBOGATES' COURTS. Cnder Code of Civil Froced- are, § 2472. nation of the Surrogate, matle upon an application pursuant to this subdivision, the appellate division of the Supreme Court has the same power as the Surrogate; and his determination must be reviewed, as if an original application was made to that term, 7. To punish any person for a contempt of his Court, civil or criminal, in any case where it is expressly pre- scribed by law that a court of record may punish a per- son for a similar contempt, and in like manner. 8, Subject to the provisions of law, relating to the dis- qualification of a judge in certain cases, to complete any nntinished business. Under Code of Civil Proeed- Under Code of Civil Proced- ure, §2472. nre, § 2472. pending before his predeces- sor in the office, including proofs, accountings, and ex- aminations. 9. To complete, and certify and sign in his own name, adding to his signature the date of so doing, all records of papers, left uncompleted or unsigned by any of his 10. To exemplify and cer- tify transcripts of all records of his court, or other papers remaining therein. 11. With respect to any matter not expressly pro- vided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of his coui't, according to the course and practice of a court having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such i?tcidental powers as are necessary to carry into effect the powers expressly con- ferred. See Matter of Under- hill, 117 N. y. 471, 473, citing Riggs V. Cragg, 89 N. Y. 480, " A Surrogate can exercise only such jurisdiction as has been specially conferred by statute, together with those incidental powers which may be requisite to eifectually carry out the jurisdiction actually granted." See also Sipperly V. Baucus, 2A N. Y. 46; Stillwcll v. Carpenter^ 52 N. Y. 414; Bevan v. Cooper^ 72 N. Y. 317; Matter ofCampt 126 N.Y. 377, 390. As illustrative of the table the following summary statement is interesting (but see, pos% separate topics) : The courts have sustained the power and jurisdiction of Surrogates' Courts in the following cases : To revoke probate upon discovery of a later will. Camfhell V. Logan, 2 Bradf. 90, 93. To inquire into legitimacy of children, by virtue of its poAver to determine and direct the distribution of an estate. Matter of Laramie, 6 N. T. Supp. 175. And, similarly, to pass on the validity of a marriage, or of a divorce. Matter of Hall, 61 App. Div. 266. To set aside an irregular or unauthorized order. Vreden- hurgh V. Calf^ 9 Paige, 128 ; Shidmore v. Davies, 10 Paige, 316, also Proctor v. Wanamaher, 1 Barb, Ch. E. 302, holding that independently of the statute of 1837, the Surrogate had power to revoke letters of administration which had been improperly obtained upon false suggestion of matters of fact, citing Cornish V. Cornish, 1 Lee's Ecc. Eep. 14; Burgis v. Burgis, Id. 121 ; Ogilvie v. Hamilton, Id. 418 ; Lord TrimUeston v. Lady T., 3 Hagg. Ecc. Eep. 243. To prove a foreign will {Isham v. Gihlons, 1 Bradf. 69, 79 and act of 1837, § 77), and hereunder a will of a foreigner exe- cuted in this State according to its forms {Catharine Rolerfs Will, 8 Paige, 519), and a will of a foreigner, dying in the county, leaving no assets, but where assets come into the county afterwards. Kohler v. Knapp, 1 Bradf. 241, 246. 10 StTKROGATKS' COURTS. To open default on an accounting and allow a contest. Pew V. Hastings, 1 Barb. Ch. R. 452. To enter an order mine pro tunc. Butler v. Emmett, 8 Paige, 12, 21 {dictum). See now § 2481, C. C. P. subd. 6. To entertain proceedings for probate of an unattested will although it is not produced and offered, when a foreign court declines to surrender the document. Matter of Delaplaine, 5 Dem. 398, and see Russell v. Hartt, 87 N. Y. 18. This is not such a case as is contemplated by section 1861 of the Code pro- viding for an action to establish a will. To issue a commission to take testimony in foreign countries. Russell V. Hartt, 87 N. Y. 18. It seems it may grant naturalization. Matter of Harstrom, 7 Abb. K C. 391. To direct executors to pay counsel for services. Oilman v. Oilman, GS N. Y. 41 (but see Bevin v. Patchen, 26 N. Y. 441) ; Peed V. Peed, 52 K Y. 651 ; In re Bailey, 14 N. Y. S. R. 325 ; Gloch V. Chadeagne, 10 Hun, 97. See under section 2730, Matter of O'Brien, 145 N. Y. 379, 384. To compel a purchaser of real estate to take, or relieve him from taking. Matter of Lynch, 33 Hun, 309. To approve or disapprove investments by executors or testa- mentary trustees. Jones v. Hooper, 2 Dem. 14. To pass on the validity of an antenuptial agreement (/w re Jones's Est., 3 Misc. 586), and enforce it ( Young v. Hicks, 92 N. Y. 235) of course where it is necessary to determine the rights of the parties. Matter of Davenport, 37 Misc. 169. Where the contract was that A should have his wife's per- sonalty if he survived her, it was held that his right was sub- ject to due administration. Foehner v. Huber, 42 App. Div. 439. To take an accounting by an executor of proceeds of real estate sold under a testamentary power. Baldwin v. Smith, 3 App. Div. 350. To try the question of a decedent's inhabitancy. People v. Waldren, 52 How. Pr. 221 ; Bolton v. Schriever, 26 Abb. N. C. 230. To dismiss or discontinue suits. Heermans v. Hill, 2 Hun, 409 ; Matter of Friedell, 20 App. Div. 382, 384. To hear and determine upon a final accounting a disputed SURROGATES AND THEIR COURTS. 11 claim of an executor against the estate although the claim be equitable in its nature. Boughton v. Flint, 74 N. Y. 476. To judicially construe a will of real and personal estate in some cases, but of course the Surrogate's action only affects the personal estate. See^os^, page 538 et seq. Matter of Mar- cial, 37 St. Eep. 569 ; Matter of French, 52 Hun, 308 ; Purdy V. Hayt, 92 N. Y. 445, 450. To determine whether an applicant for a revocation of pro- bate is a " person interested " in the estate. Matter of Peaslee, 73 Hun, 113. To grant a purchaser on partition sale leave to pay into court money to pay creditors when there has already been a Surro- gate's decree directing sale of real property to pay decedent's debts. Matter of Stumpf, 4 App. Div. 282. To determine if a woman is " lawful widow " of testator. Matter of Hamilton, 76 Hun, 200. To ascertain whether a person is an heir or belongs to any class designated in the will — such as next of kin, devisee, etc. Matter of Verjplanch, 91 N. Y. 439, 450 ; Purdy v. Hayt, 92 N. Y. 445, 450 ; Riggs v. Oragg, 89 IST. Y. 480 ; Grouse v. Wil- son, 73 Hun, 353, 356. For example : to determine whether a certain grandchild is capable of taking a given legacy, and inci- dentally of passing on question of residence of such grandchild. Oarloch v. Vandevort, 128 N". Y. 374, 377. But Surrogates cannot acquire jurisdiction where not con- ferred by statute, although the parties all appear, assent and submit the questions at issue. Dakin v. Demming, 6 Paige, 95 ; Tucker v. Tucker, 4 Keyes, 136 ; Matter of Smith, 41 N. Y. St. Eep. 337 ; Matter of Walker, 136 N". Y. 20, 39, citing Che- mung Ga/nal Bank v. Judson, 8 N". Y. 254 ; Beardslee v. Dolge, 143 IS. Y. 160, 165 ; Matter of Zerega, 58 Hun, 505 ; Matter of Redfield, 71 Hun, 344, 348 ; Bevan v. Cooj>6r, 72 N. Y. 317, 329 ; Matter of Underhill, 111 N. Y. 471, 479. Nor can juris- diction be acquired by consent of attorneys. Duryea v. Mackey, 151 N. Y. 204. It seems the rule is different as to jurisdiction of the person. Matter of Bingham, 127 N. Y. 296. They cannot set aside for fraud a release given by a party interested in an estate to the executors. Saunders v. Soulier, 126 N. Y. 193 ; Matter of Randall, 152 N. Y. 508 ; Matter of Irvin, 24 Misc. 353. Nor have they power to compel an ad- 12 surrogates' courts. ministrator to bring an action in another court. Matter of McGabe, 18 N. Y. Supp. 715. Nor to entertain a motion for a new trial of issues after jurisdiction has been divested by an appeal to the Supreme Court and specified issues have been sent to a jury for trial in that court. Matter of Patterson, 63 Hun, 529, 531. JSTor to pass on questions of title raised be- tween a claimant and a representative of testator's estate. Matter of Walker, 136 N. Y. 20, 29. Nor to decree the pay- ment of a claim rejected by the executor. Matter of Perry, 5 Misc. 149; Lamlert v. Graft, 98 N. Y. 342; McNulty v. Hurd, 72 E". Y. 518 ; Glasius v. Fogel, 88 N. Y. 434 ; Fiester V. Shepard, 92 N. Y. 251 ; Matter of Gallahan, 152 N. Y. 320 ; Matter of Stevens, 20 Misc. 157. (See 2>ost, pages 122, 14:67 et seq.) Nor to direct a satisfaction of record of a mort- gage belonging to an infant, although its estate is within its jurisdiction. Gromwell v. Kirk, 1 Dem. 599. Nor have they any jurisdiction over realty left by a decedent, or its avails, unless brought within their jurisdiction by a will or by a stat- ute for the purpose of being dealt with for some special pur- pose (like the payment of debts in case the personalty is inade- quate for the purpose). Sweeney v. Warren, 127 N. Y. 426, 435. The foregoing is merely illustrative. The rule in specific cases can be found under the chapters dealing with these cases § 5. They are constitutional courts, under the new constitu- tion of 1894, which provides (art. VI, §15); "The existing Surrogates' Courts are continued, and the Surrogates now in office shall hold their office until the expiration of their terms. .... Surrogates and Surrogates' Courts shall have the juris- diction and powers which the Surrogates and existing Surro- gates' Courts now possess, until otherwise provided by the legislature." See Matter of Bolton, 159 N. Y. 129, 134. Thus the legislature has, as before, the power to deal as it will with the jurisdiction and powers of these courts, but it may not abolish the courts. See People v. Carr, 86 N. Y. 512, 514. § 6. The terms of oiflce of all Surrogates are regulated also by the constitution. First. Those in office January 1, 1895, are to hold their un- expired terms. SURROGATES AND THEIR COURTS. 13 Second. Those hereafter elected to serve for six years in all counties save the county of New York. In that county the term is fixed at fourteen years. Third. But no Surrogate is to serve longer than until and including the last day of December next after he shall be sev- enty years of age. This last provision is not to be taken as abridging the term of any Surrogate elected prior to the time when the new con- stitution went into effect who may become seventy years of age before his six or fourteen years expire. People ex rel. Davis V. Gardner, 45 "N. Y. 812. This case is directly in point. This provision as to the Surrogates is new. For it has been expressly held that the provision in the old constitution fixing an age limit did not apply to Surrogates. People ex rel. Lent V. Carr, 100 N. Y. 236. So in People v. Gardner, the provi- sion was new as to county judges, and a county judge chosen prior to the time when the new article of the constitution was to go into effect (that is at the November election preceding January 1, 18Y0), and who had taken the oath of office, was held to be " in office at the adoption of this article " and en- titled to hold his office for the full term of four years although he became seventy years of age on February 9, 1870. It is true that the new constitution does not lengthen the term of office as was the case before, and, therefore, possibly the reasoning of Folger, J., might not be applicable that the insertion of an age limit was clearly called for by the new and longer term, and could not be made to apply to the old and shorter term which was in express words " continued." How- ever, the express provision " shall hold their offices until the expiration of their terms " is unambiguous. What follows refers to other officers, to wit : their " successors " who are to be elected. As to these an age limit is fixed. It is thought that People v. Gardner would still be an authority in the case of any Surrogate in office January 1, 1895, who may be near seventy. His term would not be abridged thereby. §7. Enumeration of courts. — The "existing Surrogates' Courts" and the " Surrogates in office" when the ne\Y consti- tution became operative were as follows : In thirty-one of the sixty counties of the State the county judge was also Surro- gate for his county, under § 15, art. VI of former constitu- tion. [This article was an amendment to the constitution of 14 surrogates" courts. 1846, prepared by delegates, elected pursuant to chapter 194, Laws of 1867, who met in convention in Albany, June 4, 1867. This article was submitted to the people in November, 1869, and adopted by a very narrow majority of less than 7,000. The article provided (§ 15) : " The county judge shall also be Sur- rogate of his county ; but in counties having a population ex- ceeding 40,000 the legislature may provide for the election of a separate officer to be Surrogate, whose term of office shall be the same as that of the county judge."] In one of the re- maining thirty, Sullivan County, there was also a special Sur- rogate (See County Law, Laws of 1892, chap. 686 ; 5 R. S. [8th ed.] 3957), the regular Surrogate being also county judge. In twenty-eight of the remaining counties to wit : In Al- bany, Cattaraugus, Cayuga, Chautauqua, Clinton, Columbia, Dutchess, Erie, Jefferson, Kings, Monroe, Montgomery, Niag- ara, Oneida, Onondaga, Ontario, Orange, Oswego, Otsego, Queens, Rensselaer, Saratoga, St. Lawrence, Steuben, Suffolk, Ulster, Washington and Westchester, there were separate Sur- rogates, who had been elected by virtue of the provisions of the constitutional amendment above referred to. In the county of New York there were two separate Surro- gates elected under the provisions of chapter 642, Laws of 1892, either of whom is entitled to exercise all the powers con- ferred by law upon the Surrogate of the city and county of New York. Laws of 1843, chap. 9, Code Civ. Proc. § 2504. In eight of the twenty-eight counties where separate Sur- rogates had been elected, to wit : Cayuga, Chautauqua, Jeffer- son, Oneida, Orange, Oswego, St. Lawrence and Washington, there were also special Surrogates as well. So we find on January 1, 1896, thirty Surrogates (two in New York), thirty-one county judges acting as Surrogates and nine special Surrogates. This leads us to note the distinction between Surrogates proper and other Surrogates. § 8. The law provides for five kinds of Surrogates. I. Surrogates proper. II. County judges sitting as Surrogates. III. Special Surrogates. IV. Acting Surrogates. V. Temporary Surrogates. § 9. Surrogates proper are those Surrogates who are elected SURROGATES AND THEIR COURTS. 15 iri counties of over 40,000 population to sit in the Surrogates' Courts of those counties. Each of the Surrogates of New York is a Surrogate proper. Where the county judge is also surrogate, he may be designated, in any paper or proceeding relating to the office of surrogate, as the surrogate of the county, without any addition referring to his office as county judge. A local officer elected, as prescribed in the constitution, to discharge the duties of surrogate, or of county judge and surrogate, is designated in this act, and, when acting as surrogate, may be designated, as the "special sun-ogate" of his county. Where an officer, other than the surrogate, acts as surrogate in a case prescribed by law, he must be designated by his official title, with the addition of the words, " and acting surrogate." § 3483, Code Civil Proc. § 10. County judges when sitting as Surrogates are entitled to the designation of " the Surrogate of the county, without any addition referring to his office as county judge. "_ Code Civ. Proc. § 2483. The distinction between Surrogates proper and county judges sitting as Surrogates was formerly further emphasized by the fact that under the old constitution a Surro- gate was not a judge, but merely a judicial officer (see Peo- ple ex ret. Lent v. Carr, 100 N. Y. 236) ; but the distinction cannot longer be made now that the court is a court of record and a constitutional court as well. Code Civ. Proc. § 3343, subd. 3, says the word " judge " includes a Surrogate. Still, this was only for purposes of construction in interpreting the provisions of the Code itself. To preside, by right, over a Court of Record constitutes the one so presiding a judge. § 11. Special Surrogates are local officers whose election may be ordered on application of the board of supervisors " to discharge the duties of county judge and of Surrogates in cases of their inability, or of a vacancy, and in such other cases as may he provided hy law, and to exercise such other powers as are or may be provided by law." Const, art. VI, § 16 (new matter being indicated by italics). The Code distinctly desig- nates these officers as " Special Surrogates." Code Civ. Proc. § 2483. The Code is not to be taken as repealing the prior pro- visions of the law giving Special Surrogates their powers. Laws 16 StTRROGATES' OOTJETS. of 1849, oh. 306, and Laws of 1851, ch. 108 ; Aldinger v. Pugh, 132 N. Y. 403 ; Ross v. Wigg, 101 N. Y. 640. § 12. Acting Surrogates are officers other than the Surrogate who act as Surrogate in the cases prescribed by law. They must be designated by their regular official title, with the addi- tion of the words " and Acting Surrogate." Code Civ. Proc. § 2483. The Code provides : Where, in any county, except New York, the office of sur- rogate is vacant ; or the surrogate is disabled by reason of sickness, absence or lunacy, and special provision is not made by law for tlie discharge of the duties of his office in that contingency ; the duties of his office must be discharged until the vacancy is filled or the disability ceases, as follows : 1. By the special surrogate. 2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge. 3. If there is no special county judge, or he is in like man- ner disabled, or is precluded or disqualified, by the county judge. 4. If there is no county judge, or he is in like manner dis- abled, or is precluded or disqualified, by the district attorney. But before an officer is entitled to act, as prescribed in this section, proof of his authority to act as prescribed in section twenty-four hundred and eighty-seven of this act must be made. In any proceeding in the surrogate's court of the county of Kings, before either of the officers authorized in this section to discharge the duties of the office of surrogate of such county for tlie time being, if an issue is joined or a contest arises either on the facts or the law, such officer, in his discretion, may, by order transfer such cause to the su- preme court to be heard and decided at a special term thereof, held in such county, which order shall be recorded in the sur- rogate's office. A certified copy of such order, together with the appropriate certificate or certificates of the authority of the officer to act as surrogate, shall be sufficient and conclu- sive evidence of the jurisdiction and authority of the supreme court in such matter or cause. After a final order or decree is made in the matter or cause so transferred to the supreme court, the court shall direct the papers to be returned and filed, and transcripts of all orders and decrees made there- in to be recorded in the surrogate's office of such county ; SURROGATES AND THEIR COURTS. 17 and when so filed and recorded, they shall have the same effect as if they were filed and recorded in a case pending in the surrogate's court of such county. § 3484, Code Civil Proc. In the county of Kings, however, a special provision of law (chap. 490, Laws of 1884) is made for a certificate by the Sur- rogate that he is disabled ; in which case first the county judge, and then the district attorney are named as the proper officers to discharge the duties of the disabled Surrogate. If neither of them can act, then the Surrogate must file the certificate re- quired by section 2485 of the Code designating the Surrogate of an adjoining county, other than New York. That section provides as follows : Where the surrogate of any county, except New York is precluded or disqualified from actiug with respect to any particular matter, his jurisdiction and powers with respect to that matter vest in the several officers designated in the last section, in tlie order therein provided for. If there is no such officer qualified to act therein, the surrogate may file in his office a certificate, stating the fact ; specifying the rea- son why he is disqualified or precluded ; and designating the surrogate of an adjoining county, other than New York to act in his case in the particular matter. The surrogate so designated has, with respect to that matter, all the jurisdic- tion and powers of the surrogate making the designation, and may exercise the same in either county. § 3485, Code Civil Proc. In the county of New York the supreme court, at a special term thereof, on the presentation of proof of its authority, as prescribed in the next section, must exercise all the powers and jurisdiction of the surrogate's court, as follows : 1. Where the surrogate is precluded or disqualified from acting, with respect to a particular matter, it must exercise all the powers and jurisdiction of that court with respect to that matter. 2. Where the office of surrogate of the county is vacant, or the surrogate is disabled by reason of sickness, absence or lunacy it must exercise all the powers and jurisdiction of that court, until the vacancy is filled or the disability ceases, aa the case may be. § 3486, Code Civil Proc. 2 18 subrogates' courts. Prior to the adoption of the new constitution the Code pro- vided that if the Surrogate were precluded or disqualified from acting, or where the office of Surrogate was vacant, or the Surrogate disabled by reason of sickness, absence or lunacy, the Court of Common Pleas should exercise all the powers and jurisdiction of the Surrogate's Court with respect to the matter regarding which the Surrogate is precluded or disqualified, or until the vacancy is filled or the disability ceases. But as by the new constitution, the Court of Common Pleas is abolished, the C9de has been amended (chap. 946 of Laws of 1895, taking effect January 1, 1896), by substituting the words "Supreme Court" for the Court of Common Pleas, which, together with the Superior Court of the city of New York is now merged in the Supreme Court. The surrogate's court, in a county where the county judge is also surrogate, may be held at the time and place at which the county court is held ; and, in that ease, the order of busi- ness of the county court, the court of sessions, and the sur- rogate's court, is under the direction of the county judge. § 2506, Code Civil Proc. § 13. Proof of authority. — Before any one may act as Sur- rogate, or another court assume jurisdiction in lieu of the Sur- rogate's Court proof of authority is required to be made. And the practitioner should be careful to see that the statutory re- quirement is complied with. Where the surrogate is disqualified or precluded from act- ing in a particular matter, that fact may be proved bj' the surrogate's certificate thereof, or, except as otherwise pre- Bcribed in section 2485, by affidavit or oral testimony. That is to say except in case there be no officer capable of acting as designated in section 2484, i. e.. Special Surrogate, special county judge, county judge, or district attorney ; for in such case the certificate of the Surrogate is requisite to-, gether with a designation by him of the Surrogate of an ad- joining county. The fact that the surrogate is so disqualified or precluded, or that he is disabled, or that the office is vacant ; and also the authority of the officer of the court, as the case may be. BTTRROGATES AND THEIK COtJRTS. 19 to apt in his place, may be proved, and are deemed con- clusively established by an order of a justice of a supreme court of the judicial district embracing the county. After such an order is made, the surrogate shall not make the cei'- tificate specified in section 2485 of this act, and if such a certificate has been theretofore filed, the powers and juris- diction of the surrogate, therein designated as specified in that section, thenceforth cease. § 3481, Code Civil Proc. This proof of authority is an indispensable prerequisite to assuming jurisdiction. The Acting Surrogate himself is like- wise interested in having such proof of authority duly filed, as his right to compensation depends upon it. Code Civ. Proc. § 2493 ; Matter of Tyler, 60 Hun, 566. The Code prescribes with great detail how the proof by order of a Supreme Court justice is to be made. Code Civ. Proc. § 2488. An order may be made, as prescribed in subdivision second of the last section, upon or without notice, as a justice of the supreme court of the judicial district embracing the county thinks proper. It must recite the cause of the making thereof, it must designate the officer or court, empowered to discharge the duties of the office of surrogate ; and, if it relates to a particular matter only, it must designate that matter. It may, in the discretion of the justice, require an oflScer to give security for the due discharge of his duties therein Where the office of surrogate is vacant, or the sur- rogate is disabled by reason of lunacy, the attorney general if directed by the governor, must, or the district attorney, upon his own motion, may, apply for the order, and a justice of the supreme court of the judicial district embracing the county must grant it upon his application. A justice of the supreme court of the judicial district embracing the county may also grant the order upon the application of a party, or a person about to become a party to any special proceeding in the surrogate's court. "Where the surrogate is sick or absent, the granting of the order rests in the discretion of the justice, and its effect may be qualified as the justice thinks proper. § 2488, Code Civil Proc. The order of the Supreme Court justice may be made upon or without notice. If the Surrogate is merely sick or absent 20 SUKKOGATES' COURTS. the justice has full discretion to refuse to grant the order. He may qualify its effect as he deems right. He may require se- curity to be given by the officer designated. The order must recite the cause of the making thereof ; it must designate the officer or court empowered to discharge the duties of Surrogate. If made in relation to a particular matter only, that fact must appear in the order, which should designate the matter. Where the office of Surrogate is vacant, or should he be dis- abled by lunacy the attorney general, if directed by the gov- ernor, must apply for the order. Or the district attorney may do so, upon his own motion. Upon either application the jus- tice to whom the application is made, that is, a Supreme Court justice of the judicial district embracing the county, must grant it. It is proper for a party to any special proceeding in the court of a Surrogate disabled by lunacy or whose office is vacant, or for a person about to become a party, to make application for the order. If the application is thus made the granting of the order is discretionary. The justice may grant it on such ap- plication. Where there is no special Surrogate in a county, but there is a special county judge, it is proper to designate the latter where the Surrogate is temporarily absent and unable to act. See § 2483, Code Civ. Proc. ; Matter of Frye, 48 N. Y. St. Eep. 572. The following precedents are suggested : In Surrogate's Court, County of Certificate nnder Title "I section 2483. ° j^ I Surrogate of the County of hereby certify, that I am precluded, (or disqualified) from acting with respect to the above entitled matter by reason of (here state the reason why he is disqualified or precluded). And I further certify that there is no officer designated in section 2484 of the Code of Civil Procedure, within this county, qualified to act therein, and I do accordingly pursuant to the pro- visions of 2485 of the Code of Civil Procedure designate the Hon. the Surrogate SUBROGATES AND THEIR COURTS. 21 Mte. The Sur- rogate of New York County can- not be designated. Proof of author- ity under section 2487 of the Code of CiTil Proced- ure. Note. Or de- scribe particular matter. of the adjoining County of (note) to act in my place and stead, in the above entitled proceeding. (Dated.) (Signature.) r Supreme Court, County of, In the matter of the applica- -j tion of for an order estab- lishing the authority of (here insert name of officer or Court to he designated) to act in the place and stead of Hon. Surrogate of the County of in (give title of proceeding). To the Supreme Court of the State of New York: The petition of of respect- fully shows to this court : I. That late of and County of in the State of New York departed this life on the day of 189 leaving his last will and testament. II. That your petitioner is named as executor in said last will and testament, and has accord- ingly begun a proceeding for the probate of said will, (note) in the Surrogate's Court in the said County of and has filed a petition pray- ing that the necessary parties be cited ; that said will be proved ; and that letters testamentary be granted thereon. III. Your petitioner is informed and verily be- lieves that the Hon. Surrogate of said County of is precluded or disqualified from acting with respect to the probate of the said will (here state cause of disqualification, whether general or special under section 2496, and, in a proper case, add, as further appears from the certificate of said Surrogate hereto annexed) (or is disabled by reason of ) (or that the oflSce of Surrogate in said County is vacant). 22 subrogates' cotjets. Note. Since there are two Sui'- rogates in New York County it is not probable that the contingencies provided against in section 2486 are likely to occur. rV. And your petitioner further shows {here state, in the order required by section 2484 what officer in the County is qualified to be designated or to act in the place of the Surrogate except in New York County, see section 2486) . Wherefore your petitioner prays an order of this court, es- tablishing the fact that the said Surrogate of the County of is disqualified (or precluded, or that he is disabled, or that the oflBce is vacant) and further establishing the authority of the Hon. (specifying the proper officer under section 2484, or in the County of New York specify merely "the Supreme Court") to exercise the jurisdiction and powers of the said Surrogate {or where the Surrogate is disabled, or his office is vacant, to discharge the duties of the said Surro- gate's office) with respect to the said proceedings for the probate of said will {or until the vacancy is filled, or until the disability of the said Sur- rogate ceases). {In cases of the Supreme Court "to exercise all the powers and jurisdiction of said Surrogate's Court" until the vacancy is filled or the disability ceases, note. ) { Where the application is for the designation of a special officer to act as Surrogate, add, and that said order fix the security to be given by said for the due discharge of his duties in said matter, {or for the exercise of the powers and jurisdiction of said Surrogate.) (Dated.) (Signature.) Note. Where the Justice of the Supreme Court re- quires notice of the application to be given this may be done by notice of motion or by order to show cause. The peti- tion may be used as an affidavit up- on which the or- der to show cause >SS. : State of New York County of being duly sworn says : that he is the petitioner above named ; that he has read the foregoing petition, by him subscribed ; and that the same is true to his own knowledge except as to the matters therein stated to be al- leged on information and belief and that as to those matters he believes it to be true. Sworn to before me this ) day of 189 \ (Signature.) SUEKOGATES AND THiilU COURTS. 23 may be obtained, ia which case how- ever an additional afSdavit should be presented stating the reason why an order to show cause is asked for. Order under sec- tion 2487. At a Special Term of the Su- preme Court, held in and for the County of at the County Present : Title. Hon. Court House in day of Justice. on the 189 On reading and filing the annexed petition of duly verified the day of 189 , {and where the certificate is annexed to the petition add, together with the certificate of Hon. Surrogate of the County of the day of 189 ) by which it appears to the satisfaction of this Court that a proceeding has been instituted in the Surrogate's Court of the County of for {here state nature of proceeding) and it further appears that the Hon. the Surrogate of said County is disabled by reason of {or that the oflBce of said Surrogate is vacant; or that the said Sur- rogate is disqualified or precluded from acting in the said proceeding, by reason of) {here state general or special reason of disqualification) . Now, on motion of attorney for the pe- titioner, it is hereby Ordered, that {here designate the special officer indicated by the petition under sec- tion 2484 or in the County of New York the SupremeCourt) be and he {or it) is hereby desig- nated and empowered to discharge the duties of the office of said Surrogate in the matter of 24 subrogates' courts. {here specify extent of the officet's authority) (or where the office is vacant, or the Surrogate is disabled say ' ' designated and empowered to ex- ercise the powers and jurisdiction of the said Surrogate's Court until " (here specify the filling of the vacancy, or the ceasing of the dis- ability, see section 2486). Where an officer is designated add a further clause. And it is Further Ordered that the said (designating the officer) before exercising any of the powers or performing any of the duties of said Surrogate execute and file a bond (here describe the character and amount of bond). (Signature of Judge). § 14. Termination of authority of Acting Surrogate. — Where the Acting Surrogate was appointed for any reason, ex- cept a vacancy in the office of Surrogate, his authority to act may be revoked by a justice of the Supreme Courtof the judi- cial district embracing the county ; such an order may be made on proof either that the cause for designating or appointing the Acting Surrogate no longer is operative or that the order or ap- pointment was impro vidently made in the first instance. When the cause of the making of the order or appointment was that the office of Surrogate was vacant, the filling of the vacancy supersedes the appointment and terminates the authority of the Acting Surrogate without any formal order of revocation. But however terminated it is without prejudice to the pro- ceedings theretofore taken by virtue of the original designation ; and when terminated the unfinished proceeding must be trans- ferred to, and may be completed by the Surrogate in the same manner, and with like effect as when a new Surrogate com- pletes the unfinished business of his predecessor. The language of the Code is as follows : Where an order is made by a justice of the supreme court of the judicial district embracing the county as prescribed in the last two sections or an appointment is made by the board of supervisors, as prescribed in section 2492 of this act, for any cause except a vacancy in the office of surrogate, it may be revoked, without prejudice to any proceedings theretofore StJEEOGATES AND THEIR COURTS. 26 taken by virtue thereof, by a justice of the supreme court of the judicial district, embracing the surrogate's county, upon proof that it was improvidently made, or that the cause of making it has become inoperative. Such an order or appoint- ment, made upon the ground that the surrogate's office is va- cant, is superseded without any formal revocation, by the filling of the vacancy. After the order or appointment is revoked, or the vacancy is filled, as the case may be, the un- finished business in any proceedings taken by virtue of the order or appointment, must be transferred to, and may be completed by the surrogate in the same manner and with like effect as where a new surrogate completes the unfinished busi- ness of his predecessor. § 3489, Code Civil Proc. § 15. Transfer from Supreme Court — Similarly, if the Su- preme Court has been entertaining proceedings, cognizable before a Surrogate, it may, in its discretion, and at any time, transfer the proceeding by its order back to the Surrogate's Court. This will usually be done if the Supreme Court is sat- isfied that the reason for the exercise of its powers and juris- diction has ceased to operate. See Code Civ. Proc. § 2491, which is as follows : The court may, at any time, in its discretion, upon being satisfied that the reason for the exercise of its powers and jurisdiction has ceased to operate, make an order to transfer to the surrogate's court, any matter then pending before it. Such an order operates to transfer the same accordingly. Immediately after such a transfer, or after the revocation of the order of the general term, as prescribed in the last sec- tion but one, the surrogate must cause entries to be made in the proper book in his office, referring to all the papers filed, and orders entered, or other proceedings taken, in the su- preme court ; and he may cause copies of any of the orders or papers to be made, and recorded or filed in his office, at the expense of the county. 26 SUBBOGATES COUBTS. Order remit- ting proceedings to Surrogate's Court under sec- tion 2491. Note. " Such an order operates to transfer" the pro- ceeding— § 2491— and all subsequent proceedings must be entitled in and acted on by the Surrogate's Court. Supreme Court Caption. Present : Title. Hon. Justice. This proceeding having been transferred to me (or, to this court) from the Surrogate's Court of the County of by order of the Supreme Court dated the day of 18 for the reason that {state reason recited in order), and it appearing to my satisfaction that the reason for the exercise of the powers and jurisdiction of said Surrogate's Court by this court has ceased to operate, now, pursuant to section 2491 of the Code of Civil Procedure, it is Ordered that the above entitled proceeding be and the same is hereby transferred bacii to the said Surrogate's Court of the County of (Signature.) So long as the proceedings remain out of the Surrogate's Court provision is made, as to New York and Kings counties, that they be entitled, sealed and signed as if originally cogni- zable in the court to which they are transferred. They are filed in the office of the clerk of that court, who performs the duties in relation thereto that the Surrogate or his clerk would, had they remainded in his court. And the issues raised in the proceedings are tried according to the rules prevailing in the court to which it has been transferred. The issuing of a cita- tion may be directed, and any order intermediate the citation and the decree may be made, by a judge of that court. This is by virtue of the following provision of the Code : In a special proceeding cognizable before a surrogate, taken in the supreme court as prescribed in this article, the seal of the court in which it is taken, must be used, where a seal is necessary. The special proceeding must be entitled in that court ; and the papers therein must be filed or recorded, as the case may be, and issues therein must be tried, as in an action brought in that court. The clerk of that court must SUBROGATES AND THEIR COURTS. 27 sign each record, which is required to be signed by the surro- gate or the clerk of the surrogate's court. The issuing of a citation may be directed, and any order intermediate the cita- tion and the decree may be made by a judge of the court. § 3490, Code Civil Proc. § 16. Temporary Surrogates are special officers, appointed under special circumstances, to perform the duties of a Surro- gate for a limited time. If the Surrogate is disabled by rea- son of sickness and there is no Special Surrogate, or special county judge {Matter of Frye, 48 N. Y. St. Rep. 572) of the county, the board of supervisors (this applies to any county ex- cept New York) may, in its discretion, appoint a suitable per- son to act as Surrogate until the Surrogate's disability ceases ; or until a Special Surrogate or a special county judge is elected or appointed. The Supreme Court also possesses the power to appoint such temporary officer, by virtue of its succeeding to all the powers of the chancellor. Matter of Hathaway, 71 N. Y. 238, 245. The chancellor had this power under chap. 320 of the Laws of 1830, § 20. Held, In re Hathaway, supra, that this power was not divested by the constitution of 1846 which prohibited the justices of the Supreme Court from making appointments to public office. This case reviews the rules as to temporary Surrogates under the old practice. As to New York County, its Surrogate's Court was estab- lished prior to the constitution of 1846 (see art. 14) and was merely continued thereby (§ 12). The term of office was left under the control of the legislature. (It is now fourteen years.) When Surrogate Van Schaick died in 1876 leaving five years of his term of six years unexpired, Delano C. Calvin was ap- pointed Temporary Surrogate until the general election next ensuing. At such election he was elected " in place of Delano C. Calvin, appointed in place of S. D. Van Schaick, deceased." Held {People v. Carr, 25 Hun, 325 and 86 N. Y. 512) that his election was for the unexpired terra, i. e., to 1881 and not for a full term to 1882. See opinions of Davis, P. J., and of Ea- pallo, J. This seems to be the proper rule as to terms of Surrogates elected to succeed a Surrogate upon the occurrence of a vacancy. As to New York County we have already noted under section 28 surrogates' courts. 2486 that there would be no Temporary Surrogate, as the Su- preme Court is directed to act until the vacancy is filled. (This is unlikely now to occur as there are two Surrogates.) More- over, these decisions would probably govern in view of the manifest intention of the new constitution as to uniformity of terms in county offices. Acting and Temporary Surrogates must not be confounded. The one is usually an existing officer — the other need not be. The Acting Surrogate unless directed so to do by the Supreme Court need not give additional security for the performance of his duties. Code Civ. Proo. § 2488. The Temporary Surro- gate cannot enter upon his duties until he has given an official bond, such as is prescribed by law with respect to a person elected to the office of Surrogate (Code Civ. Proc. § 2492), and must file an oath of office. The Code expressly differentiates between them — for in providing for their compensation it men- tions " an officer " (meaning Special Surrogate, special county judge, county judge or district attorney) "or a person" (meaning the suitable person mentioned in section 2492) " ap- pointed by the board of supervisors, who acts as Surrogate of any county during a vacancy in the office, or in conse- quence of disability." Code Civ. Proc. § 2493. In any county, except New York, if the surrogate is dis- abled, by reason of sickness, and there is no special surro- gate, or special county judge of the county, the board of supervisors may, in its discretion, appoint a suitable person to act as surrogate, until the surrogate's disability ceases ; or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering on the execution of the duties of his office, take and file an oath of office, and give an official bond as prescribed by law, with respect to a person elected to the office of sur- rogate. § 3493, Code Civil Proc. § 17. The compensation of Acting and Temporary Surro- gates equals, ^ro rata, the salary of the Surrogate (or of the county judge in counties where that officer is also Surrogate), and the amount must be audited and paid in like manner as that of the regular incumbent. Code Civ. Proc. § 2493, is as follows: . . . SURROGATES AND THEIR COURTS. 29 An officer, or a person appointed by the board of super- visors, who acts as surrogate of any county during a vacancy in the office, or in consequence of disability, as prescribed in the last nine sections, must be paid, for the time during which he so acts, a compensation equal, pro rata, to the salary of the surrogate ; or, in a county where the county judge is also surrogate, to the salary of the county judge. The amount of his compensation must be audited and paid, in like manner as the salary of the surrogate, or of the county judge as the case may be. Where an officer of the county performs the duties of the surrogate, with respect to a particular matter, wherein the surrogate is disqualified or precluded from act- ing, the supervisors of the county must allow him a just com- pensation for his services therein, to be audited and collected in the same manner. This section applied to Kings County, L. 1884, chap. 390. But this refers only to work actually done and time actually occupied in discharging the duties of a Surrogate {Matter of Tyler, 60 Hun, 566), and not to the time elapsing from the day he first begins his duties until he is relieved therefrom. For time when he is not engaged as Surrogate he may not receive compensation. Where there is a Special Surrogate, under sec- tion 1 of chapter 306 of the Laws of 1849 (covering eight coun- ties) his election contemplates his discharging the duties of Surrogate in his county in case of vacancy or of the disability of the Surrogate proper. Consequently his salary is in antici- pation of his being called upon so to act — and when he is so called upon he has no right to additional compensation under section 2493. His compensation is fixed by the board of su- pervisors, and does not necessarily correspond to that of the Surrogate. See People v. Sup. Oneida Co., 82 Hun, 105. The Code further provides : Where an act is done, or a proceeding is taken by, before, or by authority of, an officer, or a person appointed by the board of supervisors, temporarily acting as surrogate of any county, as prescribed in this article, the same must be re- corded, or the proper minutes thereof must be entered, in the books of the surrogate's court, in like manner as if the same was done or taken by, before, or by autiiority of the surro- gate of the county ; and the officer or person so acting, or the clerk of the surrogate's court, must sign the certificate 30 SUEKOGATES' COURTS. of probate and any letters so issued, and must certify the record thereof in the book. § 2494, Code Civil Proc. This section applied to Kings County by L. 1884, chap. 490. This means he must sign the same with his proper official designation. If he omit it, however, the record may subse- quently be amended. Monro's Estate, 15 Abb. Pr. 363. § 19. What constitutes disqualification. — The Code defines what causes will operate so to disqualify a Surrogate as to neces- sitate the appointment or designation of an Acting or Tempo- rary Surrogate. In the first place he is subject to the general disqualifications of a judicial officer. Thus he shall not try as Surrogate any proceedings in which he is a partj'^, or interested ; but where, by stipulation of the attorneys, moneys were paid in to the Surrogate to await the result of a litigation and the Surrogate took possession accordingly, held this was not an interest to disqualify him {Matter of Hancock, 91 N. Y. 284, reversing 27 Hun, 78 ; Matter of Newcombe, 63 Hun, 633, see 18 N. Y. Supp. 549) ; nor may he try proceedings in which he has been attor- ney or counsel {Darling v. Pierce, 15 Hun, 642) {see below) ; or where he is related by consanguinity or affinity to any party to the controversy within the sixth degree. Code Civ. Proc. §46. In addition to these general disqualifications : A surrogate is disqualified from acting upon an application for probate, or for letters testamentary, or letters of admin- istration, in each of the following cases : 1. Where he is or claims to be, an hek or one of the next of kin to the decedent, or a devisee or legatee of any part of the estate. 2. Where he is a subscribing witness, or is necessarily ex- amined or to be examined as a witness to any written or nuncupative will. 3. Where he is named as executor, trustee or guardian, in any will, or deed of appointment, involved in the matter. § 2496, Code Civil Proc. But this was held not to disqualify a Surrogate who was warden in a church to which a legacy was given by a Avill, from entertaining proceedings for its probate. Hophina v. lane, 6 Dem. 12, aff'd 17 N. Y. St. Kep. 677. SURROGATES AND THEIR COURTS. 31 It has been held that the appointment of a Surrogate's rela- tive — as his brother — as a guardian ad litem in a proceeding before such Surrogate will not disqualify him. Matter of Van Wagonen, 69 Hun, 365. But aside from the statutory causes for disqualification, a Surrogate must use his discretion in de- clining to act in a given case. Matter of Newoornbe, 18 N. Y. Supp. 5i9. See, as to personal interest, Matter of Bingham, 127 JSr. Y. 296. Section 2495 provides : A surrogate shall not be counsel, solicitor or attorney in a civil action or special proceeding for or against any executor, administrator, temporary administrator, testamentary trus- tee, guardian or infant, over whom, or whose estate or ac- counts, he could have any jurisdiction by law. The surro- gate of the county of Monroe shall not act as referee or practice as attorney or counselor in any court of record in the state. § 3495, Code Civil Proc. If a Surrogate has been acting as counsel or attorney before his election and undertakes to pass on proceedings initiated by him as, counsel or attorney, as for example in making an order of sale based on a judgment recovered by him, or in passing an executor's accounts, prepared under his personal advice, his acts are void. Barling v. Pierce, 15 Hun, 542 ; Wigand v. De Jonge, 8 Abb. IS. 0. 260. An adult party can waive objection to the power of a Sur- rogate to act unless one of these three disqualifications exists. The objection may be urged at any time before issue is joined by that party ; " or, where an issue in writing is not framed, at or before the submission of the matter in question to the Sur- rogate." See Code Civ. Proc. § 2497, which is as follows : An objection to the power of a surrogate to act, based upon & disqualification, established by special provision of law, other than one of those enumerated in the last section, is waived by an adult party to a special proceeding before him, unless it is taken at or before the joinder of issue by that party; or, where an issue in writing is not framed, at or before the submission of the matter or question to the sur- rogate. § 249 1, Code Civil Proc. As for infants, their rights are not prejudiced. The acts of a disqualified Surrogate in proceedings in which their rights 32 STJflROGATES' COTJETS. are involved are void as to them. The failure of a special guar- dian to interpose objection cannot be taken as a waiver, nor does it bind the infant. See Wigand v. De Jonge, 8 Abb. K 0. 260. The following provisions of the Code relate to the terms of the court and the Surrogate's duty to attend : The surrogate's court is always open for the transaction of any business, within its powers and jurisdiction. The sur- rogates of the city and county of New Yorlt, from time to time must appoint, and may alter the times of holding terms of that court for the trial of probate proceedings and for the hearing of motions and other chamber business. They must prescribe the duration of such terms, and assign the surro- gate to preside and attend at the terms so appointed. In case of the inability of a surrogate of that county to preside or attend, the other surrogate may preside or attend in his place. Two or more terms of the surrogate's court may be appointed to be held at the same time. The term of that court held at the chambers shall dispose of all business except contested probate proceedings ; all contested probate pro- ceedings shall be disposed of at the trial term. An appoint- ment must be published in two newspapers published in the city of New York during or before the first week in January in each year ; except that the surrogates of that county may, by notice to be published in two newspapers in the city of New York for at least five days, appoint the time for holding chambers and trial terms during the year eighteen hundred and ninety-three. All the powers conferred by law upon the surrogate of the city and county of New York may be exercised by either of the surrogates of said city and county. § 3504, Code Civil Proc. (See next page.) The surrogate must, unless prevented by sickness or other unavoidable casualty, attend at his office on Monday of each week, except during the month of August, or where Monday is a public holiday, on the following Tuesday, to execute the powers conferred and the duties imposed upon him. But the surrogate of any county, may, by an instrument in writ- ing, under his hand, filed in the office of the clerk of the county at least twenty days before the first day of January in any year, designate a day of the week, other than Monday, on which he will attend at his office, or a month other than Augustj during which he will be absent therefrom, or both SUBROGATES AND THEIR COURTS. 38 during that year ; and where the county judge is also surro- gate, he is not required to attend at his office on any day when the county court or the court of sessions is sitting. The surrogate must also execute the duties of his office, at such other times and places, within his county, as the public convenience requires. The surrogate may sign decrees, let- ters testamentary, of administration and guardianship, and orders during the month of August or such other month as he shall designate for his vacation wherever he shall be pass- ing such vacation within the state. § 2505, Code Civil Proc. Abuses were discovered by the committee of the assembly which investigated the Surrogate's Court and office in the county of New York in 1889, which indicated the value of putting some check upon the appointments made by Surro- gates in that county, and the amendment was enacted by chapter 605 of the Laws of 1899 to § 2504, at the end thereof, which reads as follows : " And there shall be published in the official law paper pub- lished in said county, upon Monday of every week, under the name of the Surrogate making the several appointments, a full and true list of the names of all appraisers, transfer tax apprais- ers, special guardians, referees and temporary administrators, which either Surrogate shall have designated or appointed dur- ing the preceding week, together with the names of the pro- ceedings in which they were appointed and the dates of said appointments." § 20. When Surrogate not to practice. — The constitution of 1894, art. 6, § 20, prohibits any Surrogate thereafter elected, in a county having a population exceeding 120,000, from prac- ticing as an attorney or counsellor in any court of record in this State, and from acting as a referee. The Surrogate of Westchester, takingoffice January 1,1901, acted as referee, and a motion was made on the ground he was without power to act. The Appellate Division refused to pass on the question be- cause the order appealed from was made on consent in order to the appeal. But it was queried whether the state census of 1892 or the Federal census of 1900 would govern ; it being claimed that under the state census there could be a deduction made for the population annexed to New York County in 1895. Brown v. Brown, 64 App. Div. §44. 3 CHAPTER II. JUEISDIOTION or StTEKOGATES' COURTS ITS NATURE AND EX- TENT. § 1. The Code is somewhat explicit as to the general juris- diction of Surrogates, and has defined carefully their incidental powers in sections 2472 and 2481. (See also table in chap. I.) § 3473. General jurisdiction of surrogate's court. Each saiTOgate must hold, within his count}', a court, -which has, in addition to the powers conferred upon it, or upon the surrogate, by special provision of law, jurisdiction, as follows : 1. To take the proof of wills; to admit wills to probate; to revoke the probate thereof ; and to take and revoke pro- bate of heirship. 2. To grant and revoke letters testamentary and letters of administration, and to appoint a successor in place of a per- son whose letters have been revoked. 3. To direct and control the conduct, and settle the accounts, of executors, administrators, aud testamentary trustees ; to remove testamentary trustees, and to appoint a successor in place of a testamentary trustee so removed. 4. To enforce the payment of debts and legacies ; the dis- tribution of the estates of decedents ; and the payment or delivery, by executors, administrators, and testamentary trus- tees, of money or other property in their possession, belong- ing to the estate. 5. To direct the disposition of real property, and interests in real property, of decedents, for the payment of their debts and funeral expenses, and the disposition of the proceeds thereof. 6. To administer justice, in all matters relating to the af- fairs of decedents, according to the provisions of the statutes relating thereto. Note. This does not however give such powers as to apply surplus income of a trust to payment of the beneficiary's cred- itors. Matter of Widmayer, 28 Misc. 362. (34) JURISDICTION OP SURROGATES COURTS, ETC. 35 This can only be done by a court of equity. Wetmore v. Wetmore, 149 N. Y. 520, 527 ; Tolles v. Wood, 99 N. Y. 616. 7. To appoint and remove guardians for infants ; to com- pel the payment and delivery by them of money or other property belonging to their wards ; and in the cases spe- cially prescribed by law, to direct and control their conduct, and settle their accounts. This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute. Section 2481 is given In this cf)nnection (as well as in the table in chap. I) as necessary to a full view of the surrogate's juris- diction. § 348 1 . Incidental powers of the surrogate. A surrogate, in court or out of court, as the case requires, has power : 1. To issue citations to parties, in any matter within the jurisdiction of his court ; and, in a case prescribed by law, to compel the attendance of a party. 2. To adjourn, from time to time, a hearing or other pro- ceeding in his court ; and where all persons who are neces- sary parties have not been cited or notified, and citation or notice has not been waived by appearance or otherwise, it is his duty, before proceeding further, so to adjourn the same, and to issue a supplemental citation, or require the peti- tioner to give an additional notice, as may be necessary. 3. To issue, under the seal of the court, a subpoena, re- quiring the attendance of a witness, residing or being in any part of the state ; or a subpoena duces tecum, requiring such attendance, and the production of a book or paper material to an inquiry pending in the court. 4. To enjoin, by order, au executor, administrator, testa- mentary trustee, or guardian, to whom a citation or other process has been duly issued from his court, from acting as such, until the further order of the court. 5. To require, by order, an executor, administrator, testa- mentary trustee, or guardian, subject to the jurisdiction of his court, to perform any duty imposed upon him, by statute, or by the surrogate's court, under authority of a statute. 6. To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court ; or to grant a new trial or a new hearing for fraud, newly discovered evi- 86 StTBEOGATES' COtJRTS. dence, clerical error, or other sufficient cause. The powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the appellate divi- sion of the supreme court has the same power as the surro- gate ; and his determination must be reviewed, as if an origi- nal application was made to that division. 7. To punish any person for a contempt of his court, civil or criminal, in any case, where it is expressly prescribed by law that a court of record may punish a person for a similar contempt, and in like manner. 8. Subject to the provisions of law, relating to the dis- qualification of a judge in certain cases, to complete any unfinished business, pending before his predecessor in the office, including proofs, accountings, and examinations.* 9. To complete, and certify and sign in his own name, adding to his signature the date of so doing, all records or papers, left uncompleted or unsigned by any of his prede- cessors. 10. To exemplify and certify transcripts of all records of his court, or other papers remaining therein. 11. With respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of his court, accord- ing to the course and practice of a court, having, by the common law, jurisdiction of such matters, except as other- wise prescribed by statute ; and to exercise such incidental powers, as are necessary to carry into effect the powers ex- pressly conferred. § 2. The provisions of the new constitution are as follows : Art. VI, § 1.5. Surrogates' Courts ; Surrogates, their power and jurisdiction ; vacancies. — The existing Surrogates' Courts are continued, and the Surrogates now in office shall hold their offices until the expiration of their terms. Their successors shall be chosen by the electors of their respective counties, and their terms of office shall be six years, except in the county of New York, where they shall continue to be four- teen years. Surrogates and Surrogates' Courts shall have the jurisdiction and powers which the Surrogates and existing * See Matter of Johnson, 27 Misc. 167, Varnum, S. JUBISDICTION OF SUEKOGATES' COTTBTS, ETC. 37 Surrogates' Courts now possess, until otherwise provided by the legislature. The county judge shall be Surrogate of his county, except where a separate Surrogate has been or shall be elected. In counties having a population exceeding forty thousand, wherein there is no separate Surrogate, the legisla- ture may provide for the election of a separate officer to be Surrogate, whose terra of office shall be six years. When the Surrogate shall be elected as a separate officer, his salary shall be established by law, payable out of the county treasury. No county judge or Surrogate shall hold office longer than until and including the last day of December next after he shall be seventy years of age. Vacancies occurring in the office of county judge or Surrogate shall be filled in the same manner as like vacancies occurring in the Supreme Court. The com- pensation of any county judge or Surrogate shall not be in- creased or diminished during his term of office. For the relief of Surrogates' Courts the legislature may confer upon the Supreme Court in any county having a population exceeding four hundred thousand, the powers and jurisdiction of Surro- gates, with authority to try issues of fact by jury in probate cases. Id. sec. 15. Among the powers specially conferred by statute referred to in section 2i72, is the power to administer oaths and take acknowledgments. Laws, 1884, ch. 309, §1. "A Surrogate has power to ad- minister oaths, to take affidavits and the proof and acknowledg- ment of deeds and all other instruments in writing, and certify the same with the same force and effect as if taken and certified b}^ a county judge." He may also direct an executor or administrator, having letters from his court to become a " consenting creditor," in proceedings to discharge an insolvent from his debts, C. C. P. § 2153. See Matter of P. Sherryd, 2 Paige, 602, where the chancellor held, prior to the statute, he had no power to permit a trustee to petition for such discharge. He has also concurrent jurisdiction with the county courts in adoption pro- ceedings, under the Domestic Eelations Law. Laws, 1896, chap. 272, §§ 60-68. These proceedings are simple, and fall under two general heads: "Voluntary adoption" and "Adop- tion from charitable institutions." Both proceedings are cog- nizable before a Surrogate. See post, part V, chap. I. 38 surrogates' courts. § 13. Further jurisdiction. — Jurisdiction is also given, by the Tax Law, chap. 24 of the General Laws (Laws, 1896, chap. 908) article X, over taxable transfers. See part YI, chap. V, post, page 1088. A Surrogate has also power to give leave to issue execution against an executor or administrator in his rep- resentative capacity, upon a judgment for a sum of money. In fact no such execution can issue without such permission by order of the Surrogate from whose court the letters issued specifying the sum to be collected, and indorsed with a direction to collect that sura. Code Civ. Proc. § 1825 el seq. See post, p. 196. He may also authorize an executor or administrator to prefer certain debts (see C. C. P. § 2719 and post, part VI, chap. Ill), and to compromise or compound claims, on appli- cation, for good and sufficient cause. Id. He may decree payment by an executor or administrator personally of any amount equal to the value of exempt property negligently omitted to be set apart by him for a surviving husband, wife or child as prescribed by law, or equal to the amount of injury thereto in proper case. See C. C. P. § 2724, and post, part VIII, p. 1451. He has power in certain cases (see discussion under § 2798 et seq. and§ 25S7, post, pp. 1294, 1314, and § 2793, p. 1300), to receive surplus moneys and distribute the same. See Matter of Oedney, 30 Misc. 18. He may, under § 1380 of the Code, q. v., make a decree granting leave to issue an exe- cution against the property of a deceased judgment debtor on whose estate he may have granted letters. See § 1381 as to procedure in securing such decree. "With this general survey of the extent of a Surrogate's jurisdiction, we pass to the examination of the nature of that jurisdiction. § 14. Nature of jurisdiction — Tlie jurisdiction of a Surro- gate's Court may be I. Exclusive of all other courts. II. Exclusive of other Surrogates' Courts. III. Concurrent with other courts. § 15. Exclusive jurisdiction is vested in Surrogates' Courts in the State of JSTew York, over the probate of wills and the issuance of letters testamentary or letters of administration. See Delabarre v. MoAlpin, 71 App. Div. 591. Note hereafter " action to establish a will," and 2 E. S. 126, § 46 ; Burger v. Hill, 1 Bradford, 360, 371. See 1 R. S. of 1813, 365, § 7, as to the probate prior to Eevised Statutes ; Brick's Estate, 15 Abb. JUEISDICTION OF SURROGATES' COURTS, ETC. 39 Pr. 12, for historical sketch of jurisdiction of Surrogates and their courts. Those provisions of the Code, §§ 1861-1867, under which an action may be brought to establish a will, constitute an excep- tion to the general rule that wills are proved by and letters is- sued pursuant to a decree of a Surrogate's Court only. The exception is, however, rather apparent than real. For in those cases where an action to establish a will is allowed by the Code (see also Eevised Statutes [2d ed.], 2 K S. §§ 67-68), the judgment of the court in which the action is brought must be supplemented by the action of the Surrogate. He must record in his office an exemplified copy of the judgment ; after which recording letters testamentary, or letters of administra- tion with the will annexed, are issued from the Surrogate's Court, as if the judgment of the other court were the very de- cree of the Surrogate. The letters issue in the same manner, and with like effect, as upon a will duly proved in the Surro- gate's Court. Code Civ. Proc. § 1863. The Surrogate must (Code Civ. Proc. § 1864) record the will, and issue letters there- upon, but the court under whose judgment he has to act cannot do so. § 16. An action to establish a will is proper in either of the following cases (see^os^, 505, part III, chap. IX) : (1) "Where a will of real or personal property, or both, has been executed in such a manner and under such circumstances, that it might, under the laws of the State, be admitted to pro- bate in a Surrogate's Court ; but the original will is in another State or country, under such circumstances that it cannot be obtained for that purpose ; or has been lost or destroyed, by accident or design, before it was duly proved and recorded within the State. (2) Where a will of personal property, made by a person who resided without the State, at the time of the execution thereof, or at the time of his death, has been duly executed, ac- cording to the laws of the State or country in which it was executed, or in which the testator resided at the time of his death, and the case is not one where the will can be admitted to probate in a Surrogate's Court under the laws of the State. Code Civ. Proc. § 1861, subd. 1, 2. Subject to this apparent exception the Surrogate's jurisdic- tion over probates is exclusive. But as all his jurisdiction is a 40 STIEEOGATES' COXJETS. limited one, so this exclusive jurisdiction is limited. It may depend upon and be conditioned by : 1. Mode of execution ; 2. Place of execution ; 3. Residence of testator ; 4. Locus (or situs) of property willed. § 17. Mode of execution.T-Surrogates may (see for fuller discussion, " Probate," chaps. I to IV, part III), grant probate of wills, (a) When executed as prescribed by the laws of the State, whether they will be wills of real or personal property. {b) Also wills of personal property, executed in other States, or in Canada, or in Great Britain or Ireland, as prescribed by their respective laws. (c) Also wills of personal property of non-residents, executed according to the law of testator's residence. Code Civ. Proc. § 2611 was amended in 1893 by adding " the right to have a will admitted to probate, the validity of the execution thereof, or the validity of any provision therein, is not affected by a change of the testator's residence made since the execution of the will." See also L. 1894, ch. 731, quoted at page ZZ'^, pod. Under the first subdivision {a), any will is entitled to pro- bate, wheresoever and by whomsoever executed, whatever the nature of the property whose disposition it seeks to effect, and wherever such propertj'^ may be sitndA.eA, provided ii be shown to have been executed in conformity with the laws of this State. Matter of M' Mullein, 5 Dem. 295, 297. Thus, where testatrix died in Glasgow, Scotland, where she resided at the time of making her last will and testament, which will was executed in conformity with the laws of this State, though fatally defec- tive under Scotch law, it was (in the case just cited) admitted to probate. The second subdivision (5), adds to the list of provable wills wills not of realty, executed in any other State in the Union, or in the Dominion of Canada, or in the Kingdom of Great Britain and Ireland, provided they be shown to have been executed in conformity with the laws of the place of execution. The provision is explicit — "laws of the State or country where it is or was executed " regardless of testator's residence, or the place of his death. Formerly this was not so ; but if after executing a will valid under the laws of the place in which it was made, the testator changed his domicile it might result JURISDICTION OF SURROGATES' COURTS, ETC. 4l in intestacy. Thus in 1856 a will was offered in New York County for probate, made by a man who at the date of execu- tion of the will was a citizen of South Carolina. The will was executed according to the requirement of the laws of that State. Subsequently the testator removed to this State, where he be- came domiciled and died. It was held that he died intestate in New York. Moultrie v. Hunt, 23 N. Y. 394. This decision was followed until the amendment of 1893 to § 2611 Code Civ. Proc. above quoted. This section is a consolidation of old sec- tions 2611-2613. The third subdivision (c), covers wills (also not of realty) executed by any non-resident of the State according to the laws of testator's residence. This means residence at time of execution, and is not affected by change of residence subse- quently. (Amendment of 1893 to § 2611.) Note that no will executed under either (5) or (c) of real property is provable here. A will of realty to be effectual to pass lands here must have been executed in conformity with the New York statute ; prior to the amendment of 1893 to § 2611 the validity of execu- tion of a will made by a non-resident without the State de- pended on his residence at the time of his death. Thas in Moultrie v. Runt, 23 N. Y. 394, 403 (see extract from Story on pp. 404, 405), the court said : " It would be plainly absurd to fix upon any prior domicile in another country. The one which attaches to him at the instant when the devolution of property takes place, is manifestly the only one which can have any- thing to do with the question." The amended section applies "only to a will executed by a person dying after April 11, 1876, and it does not invalidate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter 118 of the Laws of 1876, ex- cept where such a will is revoked or altered by a will which those sections rendered valid or capable of being proved as prescribed in this article." Code Civ. Proc. § 2611, amended 1893. Chapter 118 of the LaAvs of 1876 is as follows : § 1. Every will and testamentary instrument made out of the State of New York, and within the United States of America, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, whatever may be the domicile of the 42 SUEROQATES' COURTS. person making the same, or at the time of making the same, or at the time of his or her death, shall, as regards personal estate, be held to be well executed for the purpose of being admitted to probate in the State of New York, if the same be made according to the forms required either by the law of the place where the same was made, or by the law of the place where such person was domiciled when tlie will was made, or by the laws of the State of New York. § 2. Every will and other testamentary instrument made within the State of New York whatever may he the domicile of the person making the same at the time of making the same, or at the time of his or her death shall, as regards per- sonal estate, be held to be well executed, and shall be ad- mitted to probate in the State of New York if the same be executed according to the forms required by the laws of this State. § 3. No will, or other testamentary instrument, shall be held to have become invalid, nor shall the construction there- of be altered by reason of any subsequent change of domicile of the person making the same. § 4. Nothing in this act contained shall invalidate any will or other testamentary instrument as regards personal estate which wonld have been valid if this act had not been passed except as such will or other testamentary instrument may be revoked or altered by any subsequent will or testamentary instrument made valid by this act. § 5. This act shall extend only to wills and other testa- mentary instruments made by persons who die after this act (April 11, 1876). § 6. This act shall take effect immediately. § 18. The Place of execution may also determine the ques- tion of jurisdiction — this appears partly from the foregoing sections. If the will presented to the Surrogate was executed in this State it must have been executed in conformity with the laws of this State. If executed without the State by a resident of the state is must have been executed in conformity with the laws of this State if it devises real property ; if it deals only with personal property it is covered by the provisions of the preceding section. If executed without the State by a non-resident then it must have been executed in conformity with the laws of the place of testator's residence when he executed it. JURISDICTION OF SURROGATES' COURTS, ETC. 43 §19. Residence of testator.— Conceding the will to have been executed so as to be provable in this State under either of the foregoing sections the Surrogate's jurisdiction is further conditioned by the residence of testator. If he was, at the time of his decease a non-resident of the State the rule is that laid down above (and see section 20, infra, as to effect of locus of property willed). If he Avas, however, a resident of the State then the jurisdiction of the Surrogate's Court depends on the county of which he was a resident. Code Civ. Proc. § 2i76. See James v. Adams, 22 How. Practice, 409, to effect that it is not the process under which parties come before the Surrogate that gives him jurisdiction ; but the residence of the decedent. § 20. Locus of property willed is a most important element in determining jurisdiction, but it is more properly to be treated under the next subtopic. It may be here remarked, however, that a properly executed will of a non-resident can be proved in this State only in one of three cases: (1) Where the decedent died within a county of the State, leaving personal property in the State either at his death, or which after his death comes into the State and remains unad- ministered. Or, (2) where the decedent died without the State, but leav- ing personal property in a county of the State, or which after his death comes into the State, and remains unadministered. Or, (3) where decedent leaves real property to which the will relates, or which is subject to dispositions for the payment of his debts, and which is situated within a county of the State, provided no petition has been presented under either of the two just mentioned cases in any other Surrogate's Court. Code Civ. Proc. § 2476, subd. 4. It may be added that the Surrogate's Court has further ex- clusive jurisdiction to determine all questions of fraud, impo- sition, undue influence, mistake and other circumstances relat- ing to the factum of the instrument as well as to avoid the will or set aside its probate on the ground of fraud, mistake or for- gery. Case of BrodericKs Will, 21 Wallace, 503. See opin- ion Clark V. Fisher, 1 Paige, 176, and cases cited ; Colton v. Ross, 2 Id. 398 ; Mulr v. L. & W. Orphan Home, 3 Barb. Ch. 477. So also mistakes and variances between the will as prepared and the instructions given for preparing it can only 44 SUEROGATES' COURTS. be reformed in this court. Story's Equity, § 179 ; Burger v. Hill, 1 Bradf. 360, 372. §21. Jurisdiction exclusive of other Surrogates' Courts. — Section 2476 of the Code provides that : The surrogate's court of each county has iiirisdiction, ex- clusive of every other surrogate's court, to take the proof of a will, and to grant letters testamentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases : 1. Where the decedent was, at the time of his death, a resident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the stnte, died within that county, leaving personal property within the state, or leaving personal property which has, since his death, come into the state, and remains unadministered. Note. Thus, the surrogate first issuing letters ancillary, on a non-resident's estate, acquires exclusive jurisdiction to appoint transfer tax appraisers. Mailer of Halhaway, 27 Misc. 474. 3. Whei'e the decedent, not being a resident of the state, died without the state, leaving personal property within that county and no other ; or leaving personal property which has, since his death, come into that county, and no other, and remains unadministered. Note. This gives jui-isdiotion not only to issue letters; but, even if none be issued, the surrogate may assume juiisdiction to assess the transfer tax, if tlie property, so within the county, be taxable. Matter of Fitch, KiO N. Y. 87, 9.3. ■i. Where the decedent was not, at the time of his death, a resident of the state, and a petition for probate of his will, or for a grant of administration, under subdivision second or third of this section, has not been filed in any surrogate's court ; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter (Code Civ. Proc. §§ 2749-2801, relating to dis- position of decedenfs real property for the payment of debts and funeral expenses), is situated within that county and no other. See Matter of Buckley, 41 Hun, 106 ; Matter of Tay- lor, 13 N. Y. St. Eep. 176. § 22. Kesidents. — First, then, the decedent must have been a resident of the county in which the Surrogate had his court, JURISDICTION OF SURROGATES' COURTS, ETC. 45 even though insane when removed thereto from his former domicile in another county. Hill v. Hoi'ton, 4 Dem. 88. Thus v^hen a petition showed that testator was United States consul at Cadiz, Spain, where he died, leaving a will, executed there ; that he was a citizen of the United States, an inhabitant of the State of New York, temporarily resident at Cadiz, it was held that probate could not be granted as it did not appear when the petition was filed, on the papers, that the testator resided in New York County. Oviedo v. Duffie, 5 Eedf. 137, 139. And this is because the court being one of special and limited jurisdiction its right must be shown and not be presumed. The facts giving jurisdiction not only to the court as a Surrogate's Court, but also to the court as the Surrogate's Court of a particular county must be averred in the petition ; Matter of Hawley, 104 N. Y. 250, 262, and cases cited; Riggs v. Cragg, 89 N. Y. 480, 489, and cases cited ; and a petition for probate, omitting such averments is defective. Estate of Duffie, 3 Law Bull. 49. As this question of inhabitancy is a jurisdictional one by statute, the Surrogate must determine it when the ap- plication for probate is made. Such determination is conclu- sive when made, unless reversed on appeal. It, certainly, is not to be attacked collaterally. Bolton v. Schriever, 58 Super. Ct. 520, aff'd in 135 N. Y. 65. The Court of Appeals in the case just cited says (p. 73) : " The actual death of an individual who, at the time of his death, was an inhabitant of the State is the jurisdictional fact. . . . "Whether one or the other of the Surrogates' Courts in the various counties shall administer upon the estate .... is a question which the legislature has pro- vided for, and it depends, among other things, upon the fact of inhabitancy. This fact the Surrogate to whom it is pre- sented must decide, and if he decides that it exists, and upon evidence which legally tends to support his decision, under such circumstances we think it ought to stand until reversed. .... The decision of the Surrogate of one county, after a hear- ing of the parties upon the question whether the case calling for the exercise of the jurisdiction of his court, or the Surro- gate's Court of some other county, exists or not, should be conclusive in all collateral proceedings." And see Harrison v. Clark, 87 N. Y. 572; Power v. SjpecTcman, 126 N. Y. 354; Bumstead v. Reed, 31 Barb. 661, citing many cases ; Matter of Hathaway, 27 Misc. 474. 46 surrogates' courts. The Code itself provides (§ 2473) after declaring the general jurisdiction of the Surrogate's Court, that where its decree is drawn in question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and, in absence of fraud or collusion, conclusively established by the al- legation of jurisdictional facts in the petition. This relates only to such matters as are jurisdictional. As to these alone is the Surrogate's decision conclusive. Thus where a Sur- rogate appointed a minor as administrator, the question of age not having been brought to his notice, and the statute for- bidding such an appointment, held, in a collateral matter, ab- solutely void (eligibility not being a jurisdictional fact). Knox v. Nobel, 77 Hun, 230, 232. It is the residence at death, not the location of decedent's assets that conditions jurisdiction in cases of residents of this State dying testate or intestate. Matter of Taylor, 13 N. Y. St. Kep. 176. As to what constitutes residence suiBcient to give the Surrogate of a particular county jurisdiction it is a matter of fact which the Surrogate must determine according to the usual rules in such connection. Matter of Cruger, 36 Misc. 477, 479. " Residence " must be equivalent to domicile, and must include both actual residence and intention. Ibid., cit- ing Dupuy V. Wurtz, 53 JST. Y. 556. Where evidence was contradictory and left Surrogate in doubt it was held that tes- tator's declaration or recital in a will written by himself was conclusive. Matter of Stover, 4 Eedf. 82. The domicile of the child is that of the parent — as where the father had left England and settled in New York City, and after seven months sent for his wife and child. The child being killed by negli- srence on its arrival in New York, letters of administration on its estate were granted in New York County and suit brought for damages. Held that the father's domicile was the child's and the suit properly brought. Ryall v. Kennedy, 67 N. Y. 379, 387. See also Isham v. Gibbons^ 1 Bradf. 62 ; Graham v. The Public Administrator, 4 Bradf. 127 ; Seiter v. Straub, 1 Dem. 264, case of an orphan infant whose general guardian resided in New Jersey ; Von Hoffman y. Ward, 4 Redf. 244. So where parents separate, not under decree of a court, the child's domicile is still that of the father, although actually removed by and in custody of the mother elsewhere. Von Hoffman v. Ward, supra. So also as to rule that original JURISDICTION OF STJREOGATBS' COURTS, ETC. 47 ■domicile contimaes until a new one is acquired. Same. Also Matter of Stover, 4 Eedf. 82 ; Matter of Clark, 15 N. Y. Supp. 370; MatterqfZe)-ec/a,5S Run, 505. SeeDupuyv. Wurt3,53 N. Y. 556 ; Hart v. Eij), 148 N. Y. 306 ; Matter of Brant, 30 Misc. 14. If husband and wife separate, the wife securing a divorce in another State, where she becomes domiciled, she retains such separate domicile. Divorce for Ms wrong makes it possible for her to acquire a new and separate domicile. Matter of Colebrook, 26 Misc. 139. § 23. Non-residence. — As to non-residents the provisions of the Code above cited fall under two heads : I. Decedent, non- resident, dies in the Surrogate's county. II. Decedent, non- resident, dies outside the State. The Jirstis again subdivisible under three heads. Decedent, non-resident, dies in Surrogate's county ; (a) leav- ing personal property within the State ; (6) Or leaving personal property which has, since his death, come into the State, and remains unadministered ; (c) Or where no petition for probate or for letters has been filed under subdivision 2 or 3 of § 2476(1. e. (a) or (J), supra) but real property of decedent to which the will relates, or which is subject to disposition for the payment of decedent's debts is situated solely within the Surrogate's county. Note. See Matter of Fitch, 160 N. T. 87, 92-95; Matter of Branson, 150 N. Y. 1. The second is also subdivisible under three heads. II. Decedent, non-resident, dies without the State ; [this makes the location of the assets within the State the prerequisite of jurisdiction. See Matter of Taylor, 6 Dem. 158] (a) leaving personal property within the Surrogate's county and no other, even though the will be in the actual possession of the court of another country and cannot be produced before him. Rus- sell V. Hartt, 87 K Y. 18; Booth v. Timoney, 3 Dem. 416 ; Matter of Seahra, 18 Wky. Dig. 428 ; (5) Or leaving personal property which has since his death come into the Surrogate's county and no other, and which re- mains unadministered. See Estate of Bvffy, 1 Dem. 202 ; 48 SUEKOGATES' COtTBTS. Matter of Hopper, 5 Dem. 242. Note the words " and remains unadministered." Thus where a foreign executor remits funds to be paid under the will to a legatee in one of the counties of this State that is not, it would appear, property of decedent coming into State after his death within the meaning of the Code. See Sedgwiek v. Ashhurner, 1 Bradf. 105 ; (c) same as I. (c) above. § 24. Jurisdictional facts averred. — When, therefore, a Surrogate's Court has presented to it a petition setting forth averments of these jurisdictional facts, it may assume jurisdic- tion. It need not await the institution of probate proceedings in the place of testator's residence; but may act forthwith. Booth V. Timoney, 3 Dem. 416. Nor is any considerable amount of property requisite as a basis for an exercise of jurisdiction. In New York County a " Japanese folding chair " was held sufficient as such a basis, it being brought into the county after decedent's death. White v. Nelson, 2 Dem. 265. In this case the singular objection was made that, under 2 R. S. 83, § 9, six chairs must be excluded in reckoning a decedent's assets — and, further, that under the New Jersey law, in which State dece- dent was domiciled, the chair was also exempted. The Surro- gate overruled this objection and exercised his jurisdiction. See also Matter- of Hopper, 5 Dem. 242. See also Van Giessen V. Bridgford, 83 N. Y. 348, 355, where the court seems to think that a famil}'^ Bible and a pair of earrings would be sufficient personal property on which to assume jurisdiction. And so also where, in 1863, A took out a policy of insurance in favor of, among others, B and his personal representatives, and in 1866, B died, and thereafter, in 1868, A moved into this State and died in Broome County, it was held : that the interest of B's representatives in the policy was personal property brought into the county after B's death and warranted the Surrogate of Broome county in assuming jurisdiction. Johnston v. Smith, 25 Hun, 171, 176. In 1850, Surrogate Bradford refused an application for probate [Kohler v. Knapp, 1 Bradf. 241, 245), where the decedent, an inhabitant of Ohio, becoming insane while on a visit to New York City, died there. At that time the case of a non-resident, dying in the county, leaving no assets, but assets coming into the county after his death, was not, in terms, provided for in the statutes. After reviewing the old practice and holding that even though the Surrogate must exer- JURISDICTION OF SUBROGATES' COURTS, ETC. 49 cise his powers in the manner prescribed by statute, yet in a case upon which the statutes were silent he should not decline jurisdiction when it is apparent that a proper occasion to in- voke his authority has arisen, the Surrogate, deeming it such a casus omissus, nevertheless declined to exercise jurisdiction because the only assets claimed to have come into the county after decedent's death were (1) an old cloak lent to decedent by a friend by whom it was brought into the State, but subse- quently after his death returned to Ohio ; and (2) certain debts due the decedent from an estate in Connecticut, the adminis- trator of which estate was in New York City. It was held, first, that the mere temporary presence of the cloak on bail- ment here was not sufficient to warrant jurisdiction, especially as it had since, and before filing the petition, been removed from the county ; and second : that the debt mentioned con- stituted an asset not in New York but in Connecticut. Under the Code, as it now stands, the cloak, though on bail- ment, would probably be held to constitute sufficient property to act upon, provided, of course, it were still in the county at the time of making application. An application for probate on the will of a non-resident in the State of New York should be denied when it appears that an executor or administrator appointed in a foreign jurisdiction has reduced decedent's assets in the county to actual posses- sion before the petition was filed. Townsend v. Pell, 3 Dera. 367, 369 ; Evans v. Schoonmaker, 2 Dem. 249, 250 (aff'd in 31 Hun, 638). But, on the other hand, once a New York Surro- gate's Court has rightl}^ assumed jurisdiction, no action of for- eign courts can disturb it, or divest it of the control it has acquired over the executors or administrators it may have ap- pointed, or prevent it from compelling them to account for the assets they are administering. Duffy v. Smith, 1 Dem. 202, 208. Nor, even, will this jurisdiction once assumed be dis- turbed bj' proof of the fact that the personal property, which came into the county after decedent's death, on the strength of which jui'isdiction was exercised, was brought in irregularly and without authority of law. Matter of Accounting of Hughes, 95 N. Y. 55, and cases cited. The Surrogate of Kings County had assumed jurisdiction by virtue of subd. 4, §23, art. 2, tit. 2, chap. IV, part 2 of the Kevised Statutes. This was about 1883. In the case just cited the Court of Appeals 4 60 subrogates' couets. held, in the first place, that where there were two administra- tors of a single estate, one in the place of decedent's domicile, and the other in a foreign jurisdiction, " whether the courts of the latter will decree distribution of the assets collected under the ancillary administration, or remit them to the jurisdiction of the domicile, is not a question of jurisdiction, but of judicial discretion depending upon the circumstances of the particular case." Pages 59-60, citing Harvey v. Richards, 1 Mason, 380 ; Parsons v. Lyman, 20 N. Y. 103 ; Despard v. CImrchill, 63 N. Y. 192. In the second place, " conceding the illegality of the removal of the assets from Penns^'lvania .... the assets being in fact here, the Surrogate of Kings County acquired jurisdiction to grant administration. He was not deprived of jurisdiction because the assets were irregularly brought here, nor does that fact deprive him of jurisdiction to decree distri- bution." § 25. Location of debts as affecting jurisdiction. — We have observed above cases where the assets on which jurisdic- tion by a Surrogate in this State was sought to be based con- sisted of debts. There is now provision made in the Code in this connection which is important and which reads as follows : For the purpose of conferring jurisdiction upon a surro- gate's court, a debt, owing to a decedent by a resident of the state, is regarded as personal property situated within the county where, the debtor, or either or two or more joint debt- ors, resides ; and a debt owing to him by a domestic corpo- ration, is regarded as personal property, situated within the county where the principal office of the corporation is sit- uated. But the foregoing provision does not apply to a debt evideiiced by a bond, promissory note, or other instrument for the payment of money, in terms negotiable, or payable to the bearer or holder. Such a debt whether the debtor is a resident or a non-resident of the state, or a foreign or a do- mestic government, state, county, public officer, association or corporation, is, for the purpose of so conferring jurisdic- tion, regarded as personal property, at the place where the bond, note, or other instrument is, either witliin or without the state. § 3478, Code Civil Proc. While this section is new yet the principle contained in the latter part is not. JURISDICTION OF SUEEOGATES' COUETS, ETC. 51 Thus the Court of Appeals in 1878, in Beers v. Shannon, 73 N. Y. 292, held that a debt upon a bond has its situs where the bond is, and not where the obligor resides (citing Laws of 1830, chap. 320, § 16), for purpose of Surrogate's jurisdiction. See also Matter of Hopper, 5 Dem. 24:2. § 26. Jurisdiction concurrent with other courts.— This topic can be most readily discussed as follows : Jurisdiction may be exercised in certain cases concurrently with a Surro- gate's Court by 1. Federal courts. 2. Other state courts. 3. Other Surrogates' Courts. (1) By Federal courts. — The only jurisdiction a Surrogate's Court can exercise concurrently with the Federal courts is that over naturalization, which however it rarely if ever has used. See Matter of Harstrom, 7 Abb. IST. C. 391 ; chap. 1, § 1. On the other hand the Federal courts have asserted a right to jurisdiction in certain cases arising between citizens of different States involving the validity and construction of wills. They do not, and cannot, claim a probate jurisdiction, that is to say an application to prove a will would not be removable to a Federal court. It is not a suit, at common law or in equity. It is a proceeding, and, moreover, a proceeding in rem, which does not necessarily involve any controversy be- tween parties. In its initiation all persons are cited to appear who are interested, regardless of the State of which they may be citizens. So the United States Supreme Court has said in this connection : " From its nature, and from the want of par- ties, .... the proceeding is not within the designation of cases at law or in equity between parties oF different States of which the Federal courts have concurrent jurisdiction with the state courts under the Judiciary Act." Gaines v. Fiientes et al., 2 Otto (92 U. S.), 10, 21. And the court continues : " But whenever a controversy in a suit between such parties arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdic- tion of the case than there is that they should not take juris- diction of any other controversy between the parties." Hid., p. 22. It may be noted that Waite, Ch. J., and Bradley and Swayne, JJ., dissented, on the ground that to assume jurisdic- 62 SURBOGATES' COURTS. tion to revoke a probate was to all intents and purposes to as- sume probate jurisdiction which the Federal courts never had. See Broderick^s Will, 21 Wallace, 503 ; Tracer v. Jennison, 106 U. S. 191, 195 ; Gaines v. New Orleans, 6 Wallace, 642. " The probate of a will duly received to probate by a state court of competent jurisdiction, is conclusjve of the contents and validity of the will in this court." See Fouvergne v. City of New Orleans, 18 How. 470, 473. Mr. Rice in his work on "American Probate Law," p. 21, says: "Jurisdiction as to wills, and their probate as such, is neither included (in) nor ex- cepted out of the grant of judicial power to the Federal courts. So far as it is ex parte and merely administrative, it is not con- ferred, and cannot be exercised at all, until, in a case at law or in equity, its exercise becomes necessary to settle a contro- versy as to which of those courts have jurisdiction by reason of citizenship." But an original bill cannot be sustained in the Federal courts upon an allegation that the probate of a will was contrary to law {Tarver v. Tarver, 9 Pet. 174), because the courts " must receive the sentences of the state courts to which the jurisdic- tion over testamentary matters is committed as conclusive of the validity and contents of a will." Fouvergne v. New Orleans, just cited. § 27. (2) By other state courts. — We have already discussed " an action to establisli a will " as the nearest approach to pro- bate jurisdiction which courts, other than Surrogates' Courts, enjoy in this State. LOST WILLS. The Supreme Court used to have jurisdiction {the power to take proof of a lost or destroyed will at first resided solely in the Court of Chancery. 2 R. S. chap. VI, tit. 1, §§ 42, 63, 67 ; Bowen V. Idley, 11 Wend. 227 ; 6 Paige, 46 ; Collyer v. Collyer, 4 Dem. 53, 55 ; Bidkley v. Redmond, 2 Bradf. 281, 286 ; Timon V. Claffy, 45 Barb. 438 ; Voorhis v. Voorhis, 50 Barb. 119, aff'd 39 K. Y. 463) which the Surrogates' Courts did not have to prove a lost or destroyed will. Since 1870 (L. 1870, chap. 359, § 8 ; also 2 R. S. 58, § 67J) a lost or destroyed will can be ad- mitted to probate in a Surrogate's Court (Code Civ. Proc. § 2621) ; but only in a case where a judgment establishing the will could be rendered by the Supreme Court, as prescribed in JURISDICTION OP StrnROGATEs' COUKTS, ETC. 53 section 1865 of the Code, which reads : " But the plaintiff is not entitled to a judgment, establishing a lost or destroyed will, as prescribed in this article, unless the will was in exist- ence at the time of the testator's death, or was fraudulently destroyed in his lifetime ; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness." (See part III, chap. IX.) ADMINISTRATION. Mr. Poraeroy in his treatise on Equity Jurisdiction divides the different States into three classes as regards the question of equitable jurisdiction over administration. The third, in which he includes New York, he says is where the " equitable jurisdiction is not concurrent, but is simply auxiliary or an- cillary and corrective. The Probate Court takes cognizance originally of all administrations, and has powers suflicient for all ordinary purposes. Equity interposes only in special or extraordinary cases, which have either been wholly omitted from the statutory grant of probate jurisdiction, or for which its methods and reliefs are imperfect and inadequate, or where its proceedings have miscarried and require correction." Pom- erov's Eq. Jur. (2d ed.) § 1154, and read note to same on p. 171:9. It has been held that the Supreme Court will decline to act where an administrator, being sole next of kin, is claimed to have made a gift causa tnortis to another of the entire es- tate. The- estate must first be administered in the Surrogate's Court. Dickinson v. Col. Trust Co., 33 Misc. 668. ACCOUNTINGS. See page 1418, ^os^. Any court of equity has jurisdiction concurrent with that of Surrogates' Courts to compel executors, administrators and tes- tamentary trustees to account and to direct and control their actions in relation thereto. Wood v. Brown, 31 N. Y. 337, 345, citing Rogers v. King, 8 Paige, 210. Thus, where an ex- ecutor or trustee denies the existence of a trust, a court of equity, which has power to construe a will whenever necessary to control or guide the action of a trustee, can exercise its ju- risdiction and call upon him to account. For, so far as the 54 surrogates' courts. property is effectually disposed of by the will, the executor holds it in trust for the legatees or beneficiaries, and, accord- ing to the law of this country, if there is any part of such prop- erty or any interest therein not effectually disposed of by the will, he holds it in trust for those who are entitled to it under the statute of distributions. Wager v. Wager, 89 N. Y. 162, 166, citing Bowers v. Smith, 10 Paige, 193 ; Williams on Ex- ecutors, 294 ; 2 Story's Eq. Juris. § 1208 ; Hays v. Jackson, 6 Mass. 153. The seal of the Court of Probate is conclusive evidence of the factum of a will, but any court of equity has jurisdiction to construe the will for the purpose of enforcing a proper perform- ance of any trusts arising thereunder. However, "where complete relief can be obtained in the Surrogate's Court, a court of equity may, in its discretion, decline, on that ground, to entertain an action for an accounting: of other relief against executors." Wager v. Wager, svpra, p. 168 ; Ludwig v. Bun- gart, 48 App. Div. 613, rev'g 33 Misc. 177 ; Chijpman v. Mont- gomery, 63 N. Y. 221. ESTABLISHING VALIDITY, OONSTEUCTION OE EFFECT OF WILL. This cannot, strictly speaking, be said to be a subject of con- current jurisdiction of Surrogates' Courts and other courts, although it has been so treated. Under section 2624 of the Code the Surrogate is directed to try an issue, raised as to the validity, construction or effect of any disposition oi personal property con- tained in the will of a resident of this State executed in this State. Under section 1866 of the Code an action may be brought to determine the validity, construction or effect of a testamentary disposition of real property within the State, or of an interest therein which would descend to the heir of an intestate. These sections seem wholly distinct but they are interrelated by reason of a provision that the section " does not apply to a case, where the question in controversy is determined by the decree of a Surrogate's Court, duly rendered upon allegations lor that purpose, as prescribed in article first of title third of chapter eighteenth of this act, where the plaintiff was duly cited in the special proceeding in the Surrogate's Court, before the commencement of the action." Code Civ. Pro. § 1866. Now, it will be seen that both these sections refer to the validity not of the will itself but of the testamentary disposi- JTJEISDICTION OF SXTREOGATEs' COURTS, ETC. 55 tion made in the will. The Court of Appeals has expressly- denied jurisdiction over the former, except in actions to es- tablish the will as provided in the Code. Anderson w Ander- son, 112 N. Y. 104, 113. The policy of the court has been to deny jurisdiction in equity in matters regarding wills separated from trusts. In DelabarreY. 3fcAlpin, 71 App. Div. 591, it is held (see head- note) that the Supreme Court will not entertain an action, brought by persons claiming to be entitled to personal property as beneficiaries under an unprobated will, against a person claim- ing title to such personal property under a subsequent unpro- bated will of the decedent and also under a transfer executed by the decedent, to obtain an adjudication that the subsequent will and transfer were obtained by fraud and undue influence, and to require the defendant to account to the plaintiff for such personal property, where it does not appear that the testatrix had any real property or that there are any circumstances which would prevent the Surrogate's Court from passing upon the question as to the validity of the two wills. The general policy of this State is and has been to commit to the Surrogates' Courts the decision of questions upon the due execution of an alleged will. Anderson v. Anderson, 112 N. Y. 113 ; Biggins X. Union Trust Co., 32 N. Y. St. Rep. 197, aff'd 127 TSr. Y. 635. See as to cases when real property is involved, N'orris v, Norris, 32 Hun, 175 ; Wallace v. Payne, 14 App. Div. 597. It has been held that section 2624 gives no jurisdiction to Surrogates to determine the validity, construction or effect of a testamentary disposition of real property. Prive v. Foucher, 3 Dem. 339, 340 ; Matter of Fuller, 22]Sr. Y. St. Eep. 352. Yet the jurisdiction of the court was asserted to give judicial con- struction to a will of real property under certain circumstances. Matter of Marcial, 37 ¥. Y. St. Eep. 569. In conclusion it would seem that the concurrent jurisdiction is limited to be- quests of personalty or such interests in real property as are personal in their nature, the jurisdiction of chancery being asserted by Chancellor "Walworth in 1843. Bowers v. Smith, 10 Paige, 193. See Wager v. Wager, 89 N. Y. 162, 167, 168 ; Read v. Williams, 125 IST. Y. 560, 566. (See part III, ch. YIII.) See also Ludwig v. Bungart, 48 App. Div. 613, where it was held the Supreme Court would not refuse jurisdiction merely 56 StJEKOGATEs' COURTS. because the Surrogate's Court had concurrent jurisdiction ; but only in case it had already assumed to act in the premises (rev'g 33 Misc. 177.) • PEEVENTING PROBATE. We have said that the Surrogates' Courts have exclusive ju- risdiction over probate of wills. Nevertheless, where testatrix had made an irrevocable will of certain property to one who had given it to her in her lifetime in consideration of such will, a complaint was sustained which asked for a judgment restrain- ing an executor named in a later will from proving it, and directing that the former will be adjudged irrevocable and en- titled to probate. Cobb v. Hanford, 88 Hun, 21. APPOINTING GUARDIANS. There can hardly be said to be concurrent jurisdiction in this regard, although every court of inferior or general jurisdiction has power to appoint guardians ad litem of minors. Bride x Estate, 15 Abb. 12. Sections 468 to 477 of the Code, relating to infant parties, it is held are not applicable to Surrogates' Courts {Matter of Watson, 2 Dem. 642), as are sections 2530 and 2531. See Matter of Bolton, 159 JST. Y. 129, 134, where the court discusses carefully the limits on the Surrogate's power over infants' interests. See page 4, ante. GENERAL PROVISIONS. § 28. Presumption of jurisdiction. — Section 2473 of the Code provides that " where the jurisdiction of a Surrogate's Court to make " in a case specified in section 2472 " a'decree or other determination, is drawn in question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is presumptively, and in the absence of fraud or collusion, conclu- sively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Surrogate's Court. The fact that the parties were duly cited is presumptively proved, by a recital to that effect in the decree." Laws of 1870, ch. 359, § 1. See Power v. Speckman, 126 N. Y. 354 ; Bumstead v. Reed, 31 Barb. 661. The pre- sumption of service of citation from such recital may be nega- JTTEISDICTION OF STTRKOGATEs" COtJRTS, ETC. 57 lived, especially in case of infancy of one cited. Hood v. Rood, 85 N. Y. 561, 578. JURISDICTION ifOT LOST BY DEFECT OF EEOOKD. The surrogate's court obtains jurisdiction in every case, by the existence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties. Dalcin v. Demming, 6 Paige, 95. An objection to a decree or other determination, founded upon an omission therein, or in the papers upon which it was founded, of the recital or proof of any fact necessary to jurisdiction, which actually existed, or the failure to take any intermediate pro- ceeding, required by law to be taken, is available only upon appeal. But, for the better protection of any party, or other person interested, the surrogate's court may, in its discre- tion, allow such a defect to be supplied by amendment § 2474, Code Civil Proc. JURISDICTION ONCE ASSUMED IS EXCLUSIVE. Jurisdiction once duly exercised over any matter by a surrogate's court, excludes the subsequent exercise of juris- ditiou by another surrogate's court, over the same matter, and all its incidents, except as otherwise specially prescribed by law. Where a guardian has been duly appointed by, or letters testamentary or of administration have been duly is- sued from, or any other special proceeding has been duly com- menced in, a surrogate's court having jurisdiction, all further proceedings, to be taken in a surrogate's court, with respect to the same estate or matter, must be taken in the same court. § 3475, Code Civil Proc. § 29. Where the boundaries of a county are changed or a new county constituted, the Code provides against the apparent con- fusion of jurisdiction likely to arise. This is by section 2479, which is as follows : Where a new county has been heretofore, or is hereafter erected, or territory has been heretofore, or is hereafter, transferred from one county to anotlier, the jurisdiction of the surrogate's court of each of the counties affected thereby, to take the proof of a will, or to grant letters, depends upon 58 STJRKOGATES' COUKTS. the locality, when the petition is presented, of the place, where the property of the decedent is situated, or where the event occurred, as the case may be, which determines juris- diction. If, before the erection of the new county, or the transfer of the territory, letters have been granted, upon the ground that the decedent died or resided within the county, the surrogate's court from which they were issued has ex- clusive jurisdiction of tlie estate, and of all matters inciden- tal thereto ; and if the place where the decedent died or resided is embraced within another county, certified copies of any papers or proceedings, filed, entered, or recorded in the surrogate's court thereof, must be furnished, on pay- ment of the fees therefor, by the proper officer, to any per- son interested in tiie estate ; and, upon the latter's request and payment of the fees therefor, the proper officer of the court so having jurisdiction must file, enter, or record the same, in like manner and with like effect as the originals. Where the letters were granted upon any ground other than the decedent's death or residence within the county, the juris- diction of the court from which they were issued, remains un- affected by any change in the territorial limits of its county. § 3479, Code Civil Proc. In regard to this section it has been held that the words, " when the petition is presented," in the first paragraph (which fix the time of the location of the property of the decedent or the occurring of the event which determines the jurisdiction of the Surrogate), refer to the time when the petition is presented to thq Surrogate upon the return of the citation and not to the time when the petition is filed in his office. Matter of McGin- ness, 13 Misc. 714. So that if a new county should be erected or a transfer of territory be made subsequent to the filing of a petition and before the return day of the citation issued thereon, the matter should be brought on for a hearing before the Sur- rogate having jurisdiction under this section and if necessary the proceeding be re-entitled in the proper court. [But see Matter of McKvon, 26 Misc. 464, where, part of Westchester County having been annexed to ]S"ew York County, Siikman, S., held it was annexed for municipal purposes only, and did not affect his judicial right to grant letters on estates of residents of such annexed district.] Accordingly where one of the changes occurs contemplated by section 2479, after the filing of JUKISDICTION OP StTEROGATES' COURTS, ETC. 59 a petition, but prior to the return day of the citation, it will be necessary to procure a formal order transferring the proceed- ing to the Surrogate of the county in which the matter is tria- ble by reason of the change. This need not be on notice, but merely upon an affidavit showing the occurrence of the change of which presumably the Surrogate would take judicial notice, but showing the jurisdictional facts that either the property, the location of which determines the jurisdiction, or the event the occurrence of which determines the jurisdiction, is located or occurred in the territory erected into a new county or trans- ferred from one county to the other. The Surrogate upon these facts being made satisfactorily to appear, must make an order transferring the proceeding to the court of the other Surrogate. This is by virtue of section 2480, which is as follows : A special proceeding pending iu a surrogate's court, whose jurisdiction to entertain the same is taken away by the pro- visions of the last section, or in consequence of the erection of a new county, or the alteration of the territorial limits of a county, after this act takes effect, must be transferred, by order of the court in which it is pending, to the surrogate's court having jurisdiction ; and the latter court has the same jurisdiction, power, and authority with respect thereto, which the former court would have had, if the territorial limits of its county had not been changed. § 3480, Code Civil Proc. § 30. Article 1, of title 1, of chapter 18, closes with section 2482, which declares the applicability of the provisions of the chapter in matters of jurisdiction to cases where a will was made or the decedent died whether before or after the chapter took effect. The provision is as follows : Each provision of this chapter, relating to the jurisdiction of the surrogate's court, to take the proof of a will, and to grant letters testamentary or letters of administration or reg- ulating the mode of proceeding in any matter connected with the estate of a decedent, applies, unless otherwise expressly declared therein, whether the will was made, or the decedent died, before or after this chapter takes effect. All acts hitherto of surrogates and officers acting as such in complet- ing by certifying in their own names any uncertified wills. 60 StTREOGAlEs' COURTS. and by signing and certifying in their own names, the un» signed and uncertified records of wills and of other proofs and examinations taken in the proceedings of probate thereof, before their predecessors in office, are hereby confirmed and declared to be valid and in full compliance with the pre- existing statutory requirements. § /248!3, Code Civil Proc. CHAPTER III. OLEEKS AND STENOGEAPHEES IN SUEEOGATES' COUETS. § 1. The clerk of the court — The "Clerk of the Court" is distinguished by the Code from the " Surrogates' Clerks." The latter as will be seen directly have purely clerical functions ; the former has certain specific powers and may in certain desig- nated cases act concurrently with the Surrogate or even in his place and stead. The sections are as follows : By a written order filed and recorded in Ms office, which he may in like manner revoke at pleasure, a surrogate may appoint a clerk employed in his office to be clerk of the sur- rogate's court. The clerk so appointed may exercise, con- currently with the surrogate, the following powers of the sur- rogate : 1 . He may certify and sign as clerk of the court any of the records of the court, including the certificate specified in sec- tion twenty-six hundred and twenty-nine of this act, and the records and papers specified in subdivision nine of section twenty-four himdred and eighty-one of this act. 2. He may issue any mandate, to which a party is entitled as of course, either unconditionally or on the filing of any paper ; and may sign, as clerk of the court, and affix the seal of the court to any letters or mandate issued from the court. 3. He may certify in the manner prescribed by chapter ninth of this act, a copy of any paper, required or permitted by law to be filed or recorded in the surrogate's office. 4. He may adjourn to a definite time, not exceeding thirty days, any matter, when the surrogate is absent from his of- fice, or unable, by reason of other engagements, to attend to the same. 5. He may take the acknowledgment or proof of any in- strument, to be used or filed in the court of which he is clerk. 6. The clerk of the surrogate's court of the County of New York may, with the approval of the surrogates, authorize or deputize one or more of the other clerks, employed in the surrogate's office of said county, to sign his name, and e.vercise (61) 62 STTKROGATES' COITETS. such of the other powers conferred upon him by this section, as he shall designate. [Added by L. 1900, c. 651. J The surrogate may prohibit the clerk fi-om exercising any power specified in this section, but the prohibition does not affect the validity of any act of the clerk done in disregard of the prohibition. The clerk or other person employed in any capacity in a surrogate's office, shall not act as appraiser, as attorney or counsel, or as referee, or special guardian, in any matter before the surrogate. § 2509, Code Civil Proc. The clerk of the surrogate's court, in addition to the powers enumerated in section twenty-five hundred and nine, may exercise, concurrently with the surrogate of the county, the following powers of the surrogate : On the return of a citation issued from such surrogate's court on a petition for the pro- bate of a will, where no objection to the same is filed ; or, where all the persons entitled to be cited, sign and verify the petition, or personally, or by attorney, appear on the probate thereof, cause the witnesses to the will to be examined before him. Such examination must be reduced to writing, and for such purpose he is hereby authorized to administer and cer- tify oaths and affirmations in such cases in the same manner and with the same effect as if administered and certified by the surrogate. § 3510, Code Civil Proc. Under section 2509 it is clear that the clerk of the Surro- gate's Court may issue an ordinary citation, as that is a mandate to which a party is entitled as of course. Matter of Hurlbut. 43 Hun, 311 (dictum^ but unquestionably correct). But spe- cial citations such as one issued under section 2707 {q. v.) i. e., in proceedings to discover property withheld, are mandates to which a party is not entitled as of course ; and section 2509 defines the mandates, which the clerk may issue as those to which a party is entitled as of course, either unconditionally or on the filing of any paper ; thus citation for probate is such a mandate but a citation under section 2707, for instance, is one to which the party is not entitled unless in addition to the fil- ing of the paper, the Surrogate be satisfied that there are rea- sonable grounds for the inquiry, and therefore the courts have held such citation not to be within the power of the clerk of the Surrogate's Court to issue. See Mouran v. Hawley, 2 Dem. 396. CLERKS AND STENOGKAPHEKS IN SUEEOGATBS' COURTS. 63 The difference between citations which the clerk may issue and those which he may not, appears to hinge on whether the issue of the citation involves the exercise of judicial power by the Surrogate ; such powers cannot be delegated through any of his subordinates. The word mandate in section 25U9 un- questionably includes a citation (see § 3313, subd. 2, and also § 2515, Court of Civil Procedure, which begins, " A citation or other mandate of a Surrogate's Court," etc.). Fitkiaii's Estate, 3 N. Y. Supp. 193. " The citation is the mandate of the court and is the only foundation of the proceeding. To it and the statute the respondent is bound to look for information and notice of the nature and scope of the proceeding ; and his rights and those of all concerned depend entirely upon the terms of such information and notice." There is nothing in the section just quoted authorizing the clerk of the court to sign Surrogates' decrees. And a decree not signed by the Surrogate has no validity. Mionro's Estate, 15 Abb. 363 ; McNaughton v. Chave, 5 Abb. N. S. 22(5. Sub- sequent tiling by the clerk gives no efficiency to such decree. The courts have gone so far as to hold, where the clerk of a Surrogate issued letters to an administratrix, using a blank which had been signed by the Surrogate, and it appeared that the Surrogate never saw the petition, or the petitioner, and - never exercised any judicial function in respect to the matter, tliat the mere signature gave no validity to the letters and that their issuance by the clerk was inoperative and that one who had paid a debt to the administratrix under such invalid letters had no protection, and could be made to pay to the representa- tive of the estate having valid letters. Roderigas v. E. R. Sav. Inst., 76 K Y. 316. Section 2510 originally applied only to Kings County but, by subsequent amendments the section was made applicable to the whole State. The number of these Surrogates' clerks is of course dependent upon the volume of business to be trans- acted. In New York County they are assigned to vajrious de- partments, such as probate department, administration depart- ment, accounting, guardian, records, etc. The chief clerk is the clerk of the Surrogate's Court, the other clerks including the heads of the departments are merely clerks in the Surro- gate's office. Chapter 530 of the Laws of 1881 is entitled " An act in rela- 64 surrogates' courts. tion to the office of the Surrogate in the county of New York." By virtue of this act, several of the provisions of the Code al- ready quoted, are made inapplicable to the Surrogate's Court in the county of New York. The power of the board of alder- men of New York, who corresponded to the board of supervis- ors, over the court, over the clerks and assistants, over their salaries and over the fees in the office was completely abolished, the appointment and removal of clerks is leftentirely under the control of the Surrogate. He may appoint and at pleasure remove all clerks, officers, attendants and employees in his of- fice or connected with his court, their number, duties and sal- aries are such as the Surrogate shall designate and approve, subject however to the revision of the board of estimate and apportionment, by which board the aggregate expenses of the office is to be fixed ; the details of the annual statement are provided in the chapter {q. v.). By this act the Surrogate was empowered to require security from his various assistants (section 5) for the faithful performance of their duty which provision is now made applicable to the whole State by sec- tion 2511 of the Code which is as follows : A surrogate hereafter elected or appointed, and the sure- ties on his official bond, are liable for any act of the clerk of the suiTogate's court in the discharge of his official duties, during the surrogate's term of office, as if the act was per- formed by the surrogate. The surrogate may take security from the clerk, to indemnify him against the liability created by this section. § JiSll, Code Civil Proc. Former § 2510 unchanged. Chapter 530 of the Laws of 1884 also abolished the charging of fees excepting fees for copies of papers filed or recorded in the office, excepting mileage where the Surrogate in a case prescribed by law or in any case upon the application of a party goes to a place other than his office or court room where he is required to hold court in order to take testimony. See subd. 1 of section 7. By section 2509 already quoted the clerk or any other per- son employed in any capacity in a Surrogate's office is prohib- ited from acting as appraiser, attorney or counsel, or referee, or special guardian in any matter before the Surrogate. But it seems that this prohibition can be obviated by consent of all CLERKS AND STENOGKAPHERS IN SURROGATES' COURTS. 65 the parties. See decision of Eansom, S., Li re Shipman Estate, 5 N. Y. Supp. 559, 562, holding that the person who had been appointed referee, an assistant to the Surrogate, could not properly act except upon written consent of the parties ; this case was decided in 1889. Prior to that decision there was a decision by Surrogate Kollins in 1885 {Benedict v. Cooper, 3 Dem. 362), resting upon the decision in the Estate of Thorii, 4 Monthly Law Bulletin, 48. The learned Surrogate construed section 2511 in connection with section 90 of the Code which by section 3355 are declared to have been enacted simultane- ously. Section 90 is as follows : Certain assistants not to be appointed referees, receivers or commissioners. (Amended, 1877, 1896.) " No person holding the office of clerk, deputy clerk, special deputy clerk or assistant in the clerk's office, of a court of record or Surrogate's Court (nor any person holding a salaried office under the city or county government, or who receives money by virtue of an office which is a county charge), within either the counties of New York or Kings shall hereafter be appointed by any court or judge a referee, receiver, or commis- sioner, except by the written consent of all the parties to the action or special proceeding, other than parties in default for failure to appear or to plead." And although certain editions of the Code have an annotation to this section to the effect that the words, "or a Surrogate's Court" are superfluous, yet the decisions substantially hold that the written consent of all parties appearing does away with the effect of section 2509. The court has even gone further, and held {Benedict^!. Cooper, supra), that a stenographer does not have such a relation to the Surrogate's Court or office as to bring him within the scope of either section 90 or section 2509. It may therefore be stated to be the existing rule, " that upon written consent the prohi- bition of section 2509 may be waived," and it is submitted that the decision above cited would be a sufficient authority for a special guardian in a proper case to join in the necessary written consent. See discussion, post, under § 2546, part II, chap. III. In probate proceedings in the county of New York on the written consent of all the parties appearing, which may be taken to include infants appearing by special guardian, the Surrogate may appoint a referee to take and report testimony ; he is also given power by the same section (2546) in his discre- 5 66 STJKBOGATES' COURTS. tion to direct an assistant to take and report the testimony ; neither the referee nor assistant has power to pass upon the issues involved, although either has authority to rule upon the admissibility of evidence where objection is raised. Matter of Allemann, 1 Connoly, 441. Where the Surrogate in his dis- cretion exercises his authority to appoint his assistant to take and report the testimony, the consent of the parties is wholly unnecessary. The object of this amendment was carefully reviewed by Surrogate Ransom in the case just cited in the following language : " This amendment was prepared by my predecessor. Judge Rollins, and was adopted by the legislature at his instance. Its object was to enable the Surrogate to select an assistant to take such material, competent and relevant evidence, and such only, as pertained to the issues before the court, and thus af- ford the Surrogate some aid in disposing of the great and con- stantly increasing volume of business with which the court was being overburdened, and to permit of its being transacted with reasonable expedition. The plain language and import of the amendment show that the selection of the assistant was left to the a bsolute discretion of the Surrogate. To say, however, that the effect of the enactment is that the person selected is per- mitted to be chosen to perform the simple clerical service of noting down, without authority to rule thereon, all the evi- dence which the parties may see fit to produce, with the objec- tions raised thereto, would increase instead of relieving the labor of the court and defeat the very object sought to be ac- complished by the amendment. The power now questioned has, with the approval of and in pursuance of the construction given to the provision by Judge Rollins, been invariably exer- cised by the assistant who was appointed by him to take testimony in probate cases. His construction and practice accord with my own and are warranted by the amendment in question." § 2. Additional clerks. — Section 2508 provides for the sub- ordinate clerks in a Surrogate's office, and is as follows : Each surrogate may appoint, and at pleasure remove, as many clerks for his office, to be paid by the county, as the board of supervisors of his county, or, in the city and county of New York, the board of aldermen, authorize him so to ap- CLEBKS AND STBNOGEAPHEES IN SURROGATES' COURTS. 67 point. The board of supervisors or the board of aldermen, as the case requires, must fix the compensation of the clerk or clerks so appointed ; and may authorize them, or either of them, to receive, for their or his own use, the legal fees for making copies of any record or paper in the oflSce of the sur- rogate. A surrogate may appoint, and at pleasure remove, as many additional clerks, to be paid by him, as he thinks proper. This section was repealed 80 far as said section relates to the county of New York by Laws of 1884, chap. 530, sec. 11, which con- tains express authority for appointments in that county. § 3. Stenographers in Surrogates' Courts. — Provision is made for stenographers in Surrogates' Courts by sections 2512 and 2513, vyhich together cover all the counties in the State, and are as follows : § 2512. Stenographer for Surrogates ' Courts in New York and Kings. The surrogate of each of the counties of New York and Kings must appoint, and may, for cause, remove, a stenog- rapher for his court, who is entitled to a salary fixed by law, and to be paid as the salaries of clerks in the surrogate's of- fice are paid. § 2513. Id. ; in other counties. [Amended 1893, 1896, j The surrogate of each county, except New York and Kings, may, in his discretion, appoint, and at pleasure re- move, a stenographer for his court, who shall be paid a rea- sonable compensation, certified by the surrogate, in every case in which he takes notes of testimony. Such compen- sation is part of the costs of the proceedings. The stenog- rapher of the surrogate's court of the counties of Albany, Erie, Niagara and Rensselaer shall jeceive a salary, to be fixed by the surrogate, in the county of Niagara not exceed- ing^ eight hundred dollars per annum, and in the counties of Albany, Erie and Rensselaer, not exceeding twelve hun- dred dollars per annum, and shall deliver to the surrogate of the county a full copy of all the minutes taken by him ; and on the receipt of his fees, not exceeding three cents per folio, a like copy to the party, or each of the parties, to the pro- ceeding in which the minutes were taken. "When not actu- ally engaged in the discharge of his duties as stenographer. 0» SURROGATES COURTS. he shall perform such clerical duties in connection with the surrogate's court as the surrogate directs. It will be seen from these sections, which have been judi- cially construed, except in the Cooper case above referred to, which was in New York County, that in the counties outside of New York and Kings the stenographer, when not actually engaged in the discharge of his duties as stenographer, shall perform such clei'ical duties in connection with the court as the Surrogate shall direct. The reasoning of the Cooper case, therefore, distinguishing a stenographer from clerks or other persons employed, would not be applicable. For purposes of convenience and economy, the practice that has grown up is certainly unobjectionable, and in the absence of independent disqualifications on the part of the persons consented to or designated, the regularity of a reference had thereunder would probably be sustained. § 3541. Dutij of stenographer. The stenographer of a surrogate's court must, under the direction of the surrogute, take full stenographic notes of all proceedings, in which oral proofs are given, except where the surrogate otherwise directs. The testimony must be legibly written out at length by him, from his notes ; and the minutes thereof, as so written out, must, after being authen- ticated, as prescribed iu the next section, be filed in the sur- rogate's office. Stenographers in Surrogates' Courts are subject generally to the same duties as those in other courts of record. Thus it has been held that, as they are only authorized to charge the prescribed legal rate to counsel for furnishing an official copy of the minutes, an agreement to furnish said copy more expe- ditiousty for an advance in the legal rate cannot be enforced. McCarthy v. Bonynge, 12 Daly, 356. See Wright v. J^ostrand, 58 How. Pr. 184 ; Outh v. Dalton, id. 289. And a stenographer wrongfully refusing to give a copy of the minutes except on receipt of excessive fees, may be punished for contempt. Cavanagh v. O'Neill, 20 Misc. 233. The Surrogate may entertain the application of a stenogra- pher, e. g., who has reported an accounting before a referee, for CLEBKS AND STENOGRAPHERS IN SURROaATBS' COURTS. 69 the payment of his fees, and, in a proper case, direct payment thereof out of the estate. Matter of Maritoh, 29 Misc. 2Y0. See also Matter of Ilurd, 6 Misc. lYl ; Estate of Maria Smith, Surr. Decs. 1894, p. 329 ; Estate of Philip McDowell, Surr. Decs. 1896, p. 139 ; Matter of Henry W. Andress, Surr. Decs. 1898, p. 396. In the case first cited it was held that parties to such a pro- ceeding may stipulate that stenographer's fees be paid out of the estate. One subsequently intervening is not bound by such stipulation, and cannot be made to contribute to such payment. lUd. PART II. CHAPTEE I. PKOCEEDINGS IN SUEEOGATEs' COURTS. § 1. No action in Surrogates' Courts. — Surrogates have no jurisdiction over civil actions. The Code's distinction is not clearly drawn between actions and special proceedings. It defines civil actions, of which there is but one form (Code Civ. Proc. § 3333 ; id. § 3339) as " an ordinary prosecution, in a court of justice, by a party against another party, for the en- forcement and protection of a right, or the redress or prevention of a wrong." Any other prosecution of a party for either of such purposes above named is a special proceeding. Id. § 3334. This appears to make the distinction hinge on the word ordi- nary. But this is not satisfactory in point of clearness. Noth- ing is gained to that end by saying a special proceeding is an extraordinary or unordinary prosecution. A clearer idea of the diiference can be had. A civil action must begin with a summons. By its issuance the court may acquire a divestible jurisdiction for purposes of provisional remedies but by its service on the other party the action is said to be commenced. Code Civ. Proc. § 416. Thus the party seeking relief brings the other into a court of justice by his own act alone. This is not true of a special proceeding. The party seeking relief in such a proceeding applies to the court which by its citation or by its order to shovf cause brings the other party before it. The only exception is in regard to motions, or applications for orders, notice of which may be served by one party upon an- other, which notice of motion brings the adverse party before the court to oppose the granting of the relief referred to in the notice. But this is more an apparent than a real excep- tion, in that such a proceeding by motion is rarely if ever a primary but only an incidental proceeding, entitled in the primary or original proceeding, and capable of being made only by a party thereto. Laffei'ty v. Lafferty, 5 Redf . 326, 329, (70) PROCEEDINGS IN SUKEOGATES' COTTKTS. 71 citing Foster v. Foster, 1 Paige, 48, 52. Take the case of an application for the appointment of a temporary administrator pending a long contest. Here a citation issued after petition is not necessary. But the motion for an order making such an appointment must be made by a party to the original pro- ceeding, that is the primary probate proceeding, and notice given to every other party thereto. The Code itself expressly provides (§ 2516) : " Except in a case where it is otherwise specially prescribed by law, a special proceeding in a Surro- gate's Court must be commenced by the service of a citation issued upon the presentation of a petition." See Matter of Gregory, 13 Misc. 363. But, the presentation of the petition operates as does the issuance of the summons, since thereby the court acquires, in the language of the Code (§ 2516) juris- diction to do any act which may be done before actual service of the citation. There are, of course, proceedings in Surrogates' Courts not begun by citation, but they are not special proceed- ings. They might be called incidental proceedings, e. g., filing objections to an executor's qualifying. This presents an issue which the Surrogate must try and determine. But his order is not appealable to the Court of Appeals. It is a discretionary determination and not a final order in a special proceeding. See Matter of Baldwin, 158 IST. Y. 713. But so far as any provisions of the Code are concerned which limit the time for the commencement of a special pro- ceeding, the presentation of the petition and not the service of the citation commences the proceeding, provided the cita- tion is properly served or its publication duly commenced within sixty days after it is issued. The presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of this act, which limits the time for the commencement thereof. But, in order to entitle the petitioner to the benefit of this section, a citation issued upon the presentation of the petition, must, within sixty days thereafter, be served, as pre- scribed in section 2520 of this act, upon the adverse party, or upon one or two or more adverse parties, who are jointly liable, or otherwise united in interest ; or, within the same time, the first publication thereof must be made, pursuant to an order made as prescribed in section 2522 of this act. § 2517, Code Civil Proc. 72 surrogates' courts. ThuSj where the statute limits the right of petition for revo- cation of probate of a will to one year the petition need only be presented on the last day. The citation must be served within sixty days thereafter {Pryer v. Clapp, 1 Dem. 387, 389, where the petition was filed in time, that is within a year after the recording of the decree admitting the will to probate, but the citation though promptly issued was not served until 10(1 days later. Held that the Surrogate thereby lost his jurisdiction.) or the petitioner loses the benefit of section 2517. By " thereafter " is meant after the issuing of the citation which the Surrogate is directed to issue upon the presentation of the petition. Should this citation prove defective or there be a failure to serve all the necessary parties he may issue a supplemental citation, after and in place of the other. If that is served or publica- tion commenced within sixt}'^ days after the supplemental citation was issued, the proceeding will be regular. Mat- Ur of Will of Bradley, 70 Hun, 104, 110. This case cites Matter of Will of Oourand, 95 E". Y. 256, and professes to overrule the case of Pryer v. Clapp above cited. There is however a distinction, for in that case it appears that the cita- tion was not served within sixty days of its issuance and that the party had to suffer for his own lack of due vigilance, while in the two cases of Bradley and Oourand the citation appears to have been served properly, but there was delay in issuing it by the Surrogate, for which delay the petitioner could not well be made answerable. This case further overrules Fountain v. Carter, 2 Dem. 313, which held that section 2517 gave the Surro- gate no power to extend by order the sixty days referred to. It further overrules In re Bonnett, 1 Connoly, 294. The Oourand case was decided before section 2517 was enacted. So the author- ity of the Bradley case rests not on it but on the provisions of section 2481 of the Code under which the Surrogate has power to issue a supplemental citation, which power is by such decision made available in this connection to extend the time limited by statute within which service should be made. § 2. The petition in a special proceeding corresponds to the complaint in an action. -It contains a plain and concise state- ment of the facts constituting the claim of the petitioner. The court allows oral petitions, but written pleadings may be required. Thus section 2533 is as follows : PEOCEEDINGS IK SURROGATES' COURTS. 73 The surrogate may, at any time, require a party to file a written petition or answer, containing a plain and concise statement of the facts constituting his claim, objection, or defence, and a demand of the decree, order, or other relief, to -which he supposes himself to be entitled. The surrogate may require the petition or auswer to be verified, and a copy thereof to be served upon any other person interested. A party who fails to comply with such a requirement may be treated as a party in default. Except where such a require- ment is made, or in a case where a written petition is ex- pressly required by this act, a petition, or the answer thereto, may be presented orally ; in which case, the substance thereof must be entered in the records of the courts. § ;3533, Code Civil Proc. As a matter of ordinary practice, and as a regular rule in the county of New York, the petition is always in writing, and required to be verified. Kule 14, Surr. Ct. Hun's Kules, p. 337. In the absence of a standing rule of the Surrogate's Court of any county or of the requirement of the Surrogate as provided for in section 2533 an oral petition is sufficient for ju- risdictional purposes, only it is required that the substance thereof must be entered in the records of the court. Except in a case of urgency it is suggested that the careful practi- tioner, even where oral pleadings are allowed, will reduce his to writing. Van VlecTc v. Burroughs, 6 Barb. 341. Where a written pleading is required by the Surrogate, a failure to comply with such requirement may be treated as a default ; as may also a failure to comply with a further re- quirement that it be verified, and a copy served on any other party in interest. The petition, when made in writing, should conform to the fundamental laws of pleading applicable to complaints. It should be clear and concise. Its allegations should be in form stated to be made by the petitioner and unless stated to be made on information and belief they will be regarded as be- ing made on the knowledge of the petitioner. Code Civ. Proc. § 524. A petition must not contain inconsistent claims ; that is to say, improperly unite causes of action. See Goohs v. Barlow, 5 Redf. 406, where petitioner asked to have executors removed for misconduct and also asked that they be directed to invest 74 STTRROGATES' COTTRTS. certain funds as directed in the will. So there must not be a variance between citation and petition as to relief demanded. Such variance can be cured by amendment. Spencer v. Pop- ham, 5 Redf. i25. The rules for verification are the same as for pleadings in civil actions. Substantial compliance with the Code requirements is sufficient. Thus a petition where in the verification the affiant says, "she knows the contents thereof and that the same are true," is good. The Court of Appeals held this to be equivalent to saying that " they are true to her knowledge." Matter of Macauley, 94 N. T. 574, 577. The provisions of sections 523, 524, 525, and 526 of this act apply to a verification made pursuant to this chapter, and to the petition or other paper so verified, where they can be so applied in substance, without regard to the form of the proceeding. § 3534, Code Civil Proc. Thus, where a party to a proceeding in the Surrogate's Court is not within the county where the attorney resides (or, if the attorney is a non-resident, the county where he has his office), the verification may be made under section 525, by the attorney. Moorhouse v. Hutchinson, 2 Dem. 429, 434. When so made it must conform to the requirements of section 526, that is, it must set forth the grounds of his belief, as to all matters not stated upon knowledge, and the reason why it is not made by the party. When the attorney in verifying a pleading swears that all the allegations are within his personal knowl- edge, it has been held that his failure to assign a reason why the party did not verify it was merely an irregularity. Betts V. Krindell, 20 Abb. N. C. 1 ; Ross v. Longmuir, 15 Abb. 326. Surrogate EoUins held {Moorhouse v. Hutchinson, supra), that where " the attorney of record who signs the peti- tion alleges in his affidavit of verification that the petition is true, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true, and also swears that he verifies the peti- tion because of the absence of the petitioner from the State, and declares that the grounds of his belief in the truth of the averments in the petition are the records of the Surrogate's Court, letters of the parties concerned, and conversations with them, it is to be held a substantial compliance with the statute." PROCEEDINGS IN SURROGATES' COURTS. 76 § 3. The citation. — lastead of preceding the petition, as the summons does the complaint, the citation is prayed to be is- sued in the petition. Upon the presentation, then, of the peti- tion the Surrogate issues a citation. This citation is a mandate of the court directed to all the necessary parties to the pro- ceeding requiring them to appear and show cause why the relief demanded by petitioner, which should be specified therein, should not be granted. The relief so described should be identical with that claimed in the petition. Should it inad- vertently appear otherwise, application should be made to have it amended so as to conform to the petition or vice versa as the facts may require, which amendment the Surrogate has power to allow, Matter of Soule, 6 Dem. 137, 140; Spencer v. Fopham, 5 Redf. 425, 428, under section 2538 which reads : " Ex- cept where a contrary intent is expressed in, or plainly implied from the context of, a provision of this chapter, the following portions of this act ; to wit : title first " (i. e. §§ 721-730, entitled "Mistakes, omissions, defects and irregularities") " and articles third and fourth of title sixth of chapter eighth " (i. e. §§ 796-809, entitled " Service of papers ") " . . . . apply to Surrogates' Courts and to the proceedings therein, so far as they can be applied to the substance and subject-matter of a proceeding, without regard to its form." It is indeed his duty to disregard any error or defect in proceedings which does not affect the substantial rights of parties. A citation must be made returnable upon a day certain, designated therein, not more than four months after the date thereof ; and must specify whose estate or what subject- matter is in question. The names of all the persons to be cited, as far as they can be ascertained, must be contained in the citation. Where the name, or part of the name, of either of them cannot be ascertained, that fact must be stated in the citation. § 2519, Code Civil Proc. § 4. When names are unknown. — In proceedings in Surro- gates' Courts, the names of one or some of the parties required to be cited may at the time be wholly or partly unknown to the petitioner. In fact it is sometimes prescribed that a peti- tioner must pray that creditors, or next of kin or heirs, or de- visees, or other persons constituting a class, be cited in the particular proceeding When this is the case, which will be 76 STJRKOGATES' COUBTS. discussed further on, the Code provides (§ 2518) that "the petitioner must set forth in an affidavit, (a petition duly veri- fied, is deemed an affidavit within the meaning of this section, ibid.,) " the names of each of them, unless the name or part of the name, of one or more of them cannot, after diligent inquiry, be ascertained by him ; in which case that fact must be set forth, and the Surrogate must thereupon, inquire into the matter. For the purpose of the inquiry, he may, in his dis- cretion, issue a subpoena, requiring any person to attend before him to testify respecting the matter. If he is satisfied, upon the allegations of the petitioner, or after making the inquiry that the name of one or more of the persons to be cited, can- not be ascertained with reasonable diligence, the citation may be directed to that person, or those persons, by a general designation, showing his, her or their connection with the de- cedent, or interest in the property or matter in question ; or otherwise sufficiently identifying the person or persons in- tended. A citation, thus directed, has the same force and ef- fect, as if it was directed to the person or persons intended, by their names ; and where the person or persons so intended are duly cited, in any manner prescribed by law, the decree binds them as if they were named therein. A petition, duly verified, is deemed an affidavit within the meaning of this section. § 5. General formalities of citation. — It is the duty of the practitioner to see to it that all necessary names and facts are contained in the citation. This he does by means of the peti- tion, which, when verified, serves as the affidavit above required in cases of unknown names of necessary parties, and which contains the statement of the petitioner's claim. But apart from these matters of substance and from the requirements re- ferred to in § 3 {supra), there are still further rules as to form, which must be observed by the Surrogate issuing the citation. And first, technically, the citation issues after the entry of an order, made on the prayer of the petitioner that citation issue, directing its issue. Practically, few Surrogates insist on such procedure. The practice in New York County is to issue the citation forthwith, and later to enter an order in a regular book kept for the purpose. This practice of itself is evidence of the inutility of the order. See opinion of Surrogate Coffin in In re MerriWs Will, 5 Dem. 544, " Although perhaps not strictly PROCEEDINGS IN SUBROGATES' COURTS. 77 necessary an order for the issuing of the citation is usually en- tered." The issuing of the citation is, after all, not the act of the party, or of his attorney, but the very act of the Surro- gate himself, and we fail to see the propriety or purpose of re- quiring that oflBcer, to whom the prayer of the petitioner is addressed, to make a formal order directing himself to issue a citation when the Code is practically a standing order to hirn to issue such citation upon the presentation of the petition. And, secondly, the citation is prepared by the Surrogate, or by his clerk, and no one else, not even the petitioner's attorney may insert anything therein unless so directed to do by the Surrogate, when it becomes his own act. Thus where, after the issuance of a citation, it was discovered that a necessary party was not named therein, and his name was thereupon inserted, but not by the clerk who had prepared the citation, it was held that the Surrogate acquired no jurisdiction over such party. Boer urn v. Belts, 1 Dem. 471. Thirdly. The citation runs in the name of the People, is addressed to the parties required to be cited, by name, or, as before explained, as a class, for example, " to all persons inter- ested in the estate of James Brown, late of the city of Xew York, deceased, as creditors ; " and requires their personal ap- pearance before the Surrogate who issues the mandate (Code Civ. Proc. § 2515) " A citation or other mandate of the Surro- gate's Court must, except where it is otherwise specially pre- scribed by law, be made returnable before the Surrogate from whose court it was issued, and may be served or executed in any county") in his court on a day certain not later than four months from its date, then and there to show cause why the particular relief prayed in the petition should not be granted. It is now customary to add a clause, whenever any of the persons cited are or may be infants, requiring them to appear by their guardians, if they have any, and if not, to appearand ask for the appointment of one ad litem, and further notifying such infants that upon their failure so to do, on or before the return day the Surrogate himself will appoint one to protect such infant's interest. See Price v. Fenn, 3 Dem. 341, 345. The citation must be attested by the seal of the Surrogate's Court and signed by the Surrogate himself or the clerk of the court. 78 SUEKOGATES COURTS. Petition for Ci- tation ; General Form. Note. Or state whatever facts are necessary to en- title the petitioner to the citation- prayed for. Surrogate's Court, County of Title. I To the Surrogate's Coui't of the county of The petition of residing at in and county of respectfully shows : I. That your petitioner is (state in what relation the petitioner stood to the decedent), deceased, and as such is interested in the above- entitled proceeding. II. That letters testamentary (note) on the estate of said deceased were granted by the Surrogate of the county of New York to on the day of 18 III. That more than has elapsed since his appointment, and the said has (state briefly what the party to be cited has done or failed to do). Your petitioner therefore prays that a citation may be issued requiring the said to appear in this court, and show cause why he should not (state briefly the relief desired) . (Signature) Petitioner. Order for Cita- tion. Present : Title. Hon. Surrogate's Court Caption. Surrogate. On reading and filing the petition of praying for (describe relief asked bnefly) It is Ordered, that a citation issue to (give names of persons mentioned in petition), mentioned in said petition, (add, if necessary, being all the persons interested, or all the heirs and next of kin, or whatever description will designate the persons or members of a class who must he cited) returnable the day of 18 PROCEEDINGS IN SURROGATES' COURTS. 79 at o'clock in the forenoon requiring them and each of them then and there to show cause why the relief prayed for in said petition should not be granted. ( Where there are infants add and also that said citation contain a notice to said parties who are infants, to then and there show cause why a special guardian should not be ap- pointed by the Surrogate to appear for them and protect their interests in the above entitled pro- ceeding.) Surrogate. THE PEOPLE OF THE STATE OF NEW YOEK, BY THE GBACB OF &0D, FREE AND INDEPENDENT. Citation ; Gen- To eral Form. SEND GREETING : You and each of you are hereby cited and re- quired personally to be and appear before our Surrogate of the County of New York, at the Surrogate's Court of said County, held at the New York County Court House in the City of New York, on the day of at half- past ten o'clock in the forenoon of that day, then and there to and such of you as are hereby cited, as are un- der the age of twenty-one years, are required to appear by your guardian, if you have one, or if you have none, to appear and apply for one to be appointed, or in the event of your neglect or failure to do so, a guardian will be appointed by the Surrogate to represent and act for you in the proceeding. In Testimony Whereof, We have caused the Seal of the Surrogate's Court of the said County of New York to be hereunto aflSxed. Witness, Hon. a Surrogate of our said County, at the City of New York, the day of in the year of our Lord one thousand eight hundred and ninety- Clerk of the Surrogate's Court. {-} 80 StTBBOGATBS COURTS. Note. The cita- tion, with sworn proof of service, or with admission duly acljnowl- edged and certi- fied in lilce man- ner as a deed to be recorded in the County, must be returned to the Clerlt of the Sur- rogate's Court be- fore one o'clock P.M. on the day preceding the re- turn day. Rule 2. Note. In New York County, un- less the proceeding be one excepted by Rule 3 (see post), add, and of the petition (or other papers, de- sci'ibing them) tip- on which it was issued. Surrogate's Court, County of New York. In the matter of the estate of Deceased. ^ Proof of ser- -vice of citation. (Note.) State of County of of being duly sworn, says that he is over the age of twenty-one years ; that he made personal service of the within citation in the above-entitled special proceeding on the per- sons named below, whom deponent knew to be • the persons mentioned and described in said cita- tion, by delivei'ing to and leaving with each of them personally a true copy of said citation (note) as follows : On DATE OF SEBVICE. uy c g {and where there are infants add) And named deponent further says that the above are infants under the age of fourteen years, and that he served said citation on said infants per- sonally and also by delivering to and leaving with the of said infant with whom he re- sides a copy thereof on the day of 189 at N. Y. Sworn to before me this ) day of 189 J Affidavit of Mailing Citation and order under § 2524. Surrogate's Court, Erie County, New York. In the matter of ' Deceased. State of New York, County of Erie, of •S3. of the in the said County of Erie, PEOCEEDINGS IN SURROGATES' COURTS. 81 being duly sworn says that he is of the age of eighteen years and upwards, that on the day of 189 he deposited in the Post-Office in the of in said County of Erie, copies of the citation issued in the above entitled proceeding, and of the order for the publication thereof, bearing date the day of 189 made by the Hon. LOUIS W. MARCUS, as Surrogate of said County of Erie in said proceeding, each contained in a se- curely closed postpaid wrapper directed to the person to be served, at the place specified in said order, to wit : Names. Addresses. And deponent further says, that each wrapper contained a copy of said citation and of said order, and that copies of said citation and order are hereto annexed. Sworn to before me this ) day of 189 j § 6. Where person required as a party is unknown. — The Code, in its provisions regarding the summons, covers two con- tingencies as to parties required to be therein named : The first, where the name is unknown, and a fictitious name has to be used ; the second, where the person himself is unknown, when he must be designated as unknown and also described in a manner tending to identify him. Code Civ. Proc. § 451. There is a similar distinction in regard to citations. Sec- tion 2518 already quoted, covers cases where there is knowledge by petitioner that persons exist as creditors, or as legatees, or as next of kin, but there is ignorance of their names, in whole or in part. They must be brought in, for section 25l8 says they are "necessary" parties. And section 2523 also refers to persons unknown to petitioner, such as one or more unknown creditors, next of kin, legatees, heirs, devisees, etc., but thought to exist as members of a class ; such persons must also be des- ignated by a description tending to identify them, as, for ex- ample, by including them in a class. To make this clearer, suppose petitioner knows that his intestate had a brother known 6 82 surrogates' courts. to be deceased. He may know that such brother left issue, but be ignorant of their names, or he may not know whether he left any issue at all, or their number if any. If the description be comprehensive and sufficient all persons included therein are precluded by the decree as completely as if duly named in the citation. § 2518, and see Matter of Ellis, 22 N. Y. St. Kep. 77. It seems if the petitioner, for example, decedent's widow, shows to the satisfaction of the Surrogate that testator left no heirs nor next of kin, the issuance of a citation may be dispensed with. See Bailey v. Stewart, 2 Eedf. 212. § 7. Practice as to Return Day. — If practicable, the peti- tion should state the ages and places of residence of the parties in order to guide the court in fixing the return day of the cita- tion. So long as it is fixed within the statutory limits the Surrogate may consult his convenience and that of the peti- tioner in fixing it. flatter of Washburn, 12 Misc. 242. If it appear that all of the persons to be cited reside in the county of the Surrogate or an adjoining county, a return day will be fixed so that the citation may be served at least eight days prior thereto. A citation must be served, if within the county of the sur- rogate, or an adjoining county, at least eight days before the return day thereof ; if in any other county, at least fifteen days before the return day ; unless, in either case, the person served, being an adult, and not incompetent, assents in writ- ing to a service within a shorter time. Any person, although a party to the special proceeding, may serve a citation. § 3530, Code Civil Proc. Service must be made so as to give eight days' notice and not to be served on the eighth day prior. The Avay to com- pute is to count eight days excluding the day of service. See Small v. Edrick, 5 Wend. 138 ; Matter of Carhart, 2 Dem. 627. If the person to be cited reside in any other county of the State, the return day will be fixed so that the service may be made at least fifteen days before the return day ; and if out of the State, such a return day must be fixed as to enable personal service thereof to be made at least thirty days before the return day, or, if service be necessary by publication, the return day must PROCEEDINGS IN SURROGATES' COURTS. 83 be fixed at least six weeks oflf. See In re Merritts Will, 5 Dem. 544; Matter of Koch, 19 Civ. Pro. Rep. 165. The allegations of the petition are the only guide the Surro- gate has by which to fix the return day. If it contains noth- ing to indicate this he will require an affidavit setting forth the facts for that purpose. It win be found to be an aid to the clerk of the court par- ticularly in probate proceedings, if petitioner will prepare and file with his petition a chart, or family tree, showing all the known relatives of decedent. Where the will relates to per- sonal property only the next of kin need only be shown. Where it relates to real property also the heirs at law should be shown. Thus : Mary (Smith) mother of testator dead. William Murdock. I dead. grandfather of testator. Susan [Jones] of testator John Smith Sarah (the testator) (sister) dead no A Katharine (Power) let cousin dead; leaving A' one child Mary an infant 7 years old. aunt dead. Will am M. cousin A 1st dead. A John Jones, 1st cousin, unmarried of full age. B Susan (Gray) dead leaving 4 children infants under 14. Thus : if John Smith's will is one of real property as well as of personal, the children in class B and the child in class A' are entitled to he made parties ; whereas if it be a will of per- sonal property alone onl}' class A would be entitled to citation. But while section 2615 remains unchanged as to whom shall be cited, section 2732, relating to distribution of personal prop- erty was amended by chapter 319, L. 1898, so as to read 84 surrogates' courts. in subdivision 12, " Eepresentation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate," so that after citation, class A' or B could come in and ask to be made parties. § 8. Rules for service of citation.— Rule 3 of the Surro- gate's Court of the county of New York lays down this pre- liminary requisite : " No mandate issued out of this court shall be deemed duly served, unless copies of the petition or other papers upon which it shall be issued, and upon which relief is sought, shall be served with it, except the following : " 1. Citation to attend probate. " 2. Citation to revoke probate. " 3. Citation on application for administration. " 4. Citation for intermediate account. " 6. Citation to attend judicial settlement. " 6. Citation to temporary administrator to account. " 7. Citation to principal in a bond to give new sureties in place of sureties who apply to be released. " 8. Order to temporary administrator to make deposit. " 9. Order to executor to appear and qualify. "10. Order requiring the executor or administrator to file inventory." Bearing this requirement in mind the next point is mode of service. This may be in one of three ways : personal service, substituted service and service by publication. The mode may depend upon the residence of the party, his minority or his lack of legal capacity. § 9. Service of citation within the State.— Except where special provision is otherwise made by law, service of a citation, within the State, must be made upon an adult person, or an infant of the age of fourteen years or upwards, by delivefing a copy thereof to the person to be served, or by leaving a copy at his residence, or the place where he sojourns, with a person of suitable age and discretion, under such circumstances, that the Surrogate has good reason to believe that the copy came to his knowledge, in time for him to attend at the return day. Code Civ. Proc. § 2520. "Where it appears by affidavit to the satisfaction of the Sur- rogate from whose court a citation issued that proper and dili- gent effort had been made to serve it upon a resident of the State, as prescribed in the last section (§2520), and that PBOCEEDINGS IN SURROGATES' COURTS. 85 the person to be served cannot be found, or, if found, that he evades service, so that it cannot be made, the Surrogate may make an order directing that service thereof be made, as pre- scribed in section 436 of the Code : The order must direct that the serving of the summons be made by leaving a copy thereof, and of the order at the resi- dence of the defendant, with a person of proper age, if upon reasonable application, admittance can be obtained, and such a person found who will receive it ; or, if admittance cannot be so obtained, nor such a person be found, by aflSxing the same to the outer or other door of the defendant's residence, and by depositing another copy thereof properly enclosed in a postpaid wrapper, addressed to him, at his place of resi- dence, in the post-offlce at the place where he resides ; and the provisions of that section and of section 437, of this act The order and the papers upon which it was granted, must be filed, and the service must be made, within ten days after the order is granted : otherwise the order becomes inoperative. On filing an affidavit, showing service according to the order, the summons is deemed served, and the same proceedings may betakenthereupon,asif it had been served by publication. . .. relating to the service of a summons, apply to the service of a " citation " made pursuant to such an order. Code Civ. Proc. § 2521. This section confers the same authority upon the Surrogate as is possessed by a judge of a court of record. Scharmann v. Schoell, 38 App. Div. 528. Therefore, upon proof of service of citation as provided in this section the court acquires jurisdiction of the person, and may enter an effectual order. The order so made, if not complied with, vrill be a sufficient basis for an action against the surety on the official bond of the disobedient representative. Hid., citing Hunt V. Hunt, 72 JST. Y. 217 ; Burton v. Burton, 45 Hun, 68 ; Continental Nat. Bank v. Thurler, 74 Hun, 632. In any one of the four following cases the Surrogate who has issued the citation may make an order directing the citation to be served without the State or by publication : 1 . Where it is to be served upon a foreign corporation, or upon a person who is not a resident of the state. 2. Where the person to be served, being a resident of the state, has departed therefrom, with intent to defraud his creditors, or to avoid the service of process. 86 StTREOGATES' COURTS. 3. Where the person to be served, whether an adult or ao infant, is a resident of the state, but is temporarily absent therefrom. 4. Where the person to be served is a resident of the state, or a domestic corporation, and an attempt was made to serve a citation, issued from the same surrogate's court, upon the presentation of the same petition, before the expiration of the limitation applicable to the enforcement of the claim set forth in the petition, as fixed in chapter fourth of this act ; and the limitation would have expired, within sixty days next preceding the application for the order, if the time had not been extended by the attempt to serve the citation. § 3533, Code Civil Proc. Service can also be made pursuant to an order directing the service of a citation without the State, or by publication in the two following cases : 1. Upon a party, to whom a citation is directed, either by his full name or part of his name, where the surrogate is satisfied, by affidavit, that the residence of that party cannot, after diligent inquiry, be ascertained by the petitioner. 2. Upon one or more unknown creditors, next of kin, legatees, heirs, devisees, or other persons included in a class, to whom a citation has been directed, designating them by a general description, as prescribed_ in this article. § 3533, Code Civil Proc. It will be noted the Surrogate is not bound to make an order for service by publication merely because there are non-resi- dents. These sections give him discretionary power to do so. Matter of Washburn, 12 Misc. 242. Surrogate's Court. Caption. Present : Hon. Surrogate. Title. ! Order for Ser- vice of Citation under § § 2232 Upon filing the verified petition of the and 2523. executor named in the will of late of the City of New York, deceased, by which the peti- PROCEEDINGS IX SURROGATES' COURTS. 87 tioner has made proof to my satisfaction that are legatees or next of kin (or designate their relation to decedent) of said deceased, and that they are not residents of this State, and that personal service of the citation herein, can- not with due diligence be made upon them within the State; (and by which said petition, the petitioner has also made proof to my satisfaction that there are other legatees or next of kin of said deceased, whose names and places of resi- dence are unknown, and cannot after diligent inquiry be ascertained by the petitioner,) (and also that are legatees, or next of kin of said deceased, and that their places of residence are unknown, and cannot after diligent inquiry be ascertained by the petitioner) . Now, on motion of of counsel for the said petitioner. Ordered : That service of the citation in the above entitled mat- ter, upon the aforesaid persons, viz. be made by publication thereof in two news- papers, to wit : in the published in the City of New York, and in the once a week for six successive weeks ; or, at the option of the petitioner, by delivering a copy of the citation to the above named person, in person without the State ; And it is further Ordered and Directed, That on or before the day of the first publication, the petitioner deposit in the post-office at the City of New York sets of a copy of the cita- tion and of this order, each set contained in a securely closed postpaid wrapper, directed to the following persons respectively, at the places designated below : (And it is further Ordered, That service of 88 SUKKOGATES' COURTS. citation iu the above entitled matter upon those persons whose names and places of residence are unknown, and cannot after diligent inquiry be ascertained by the petitioner herein, and also upon whose places of residence are unknown, and can- not after diligent inquiry be ascertained by the petitioner herein, be made by publication thereof in two newspapers, to wit : in the published in the City of New York, and in the once a week for six successive weeks ; or, at the option of the petitioner, by delivering to and leaving with without the State, a true copy of the said citation. And 1 being satisfied by the said petition that the petitioner cannot with reasonable diligence ascertain a place or places where the said lega- tees or next of kin would probably receive mat- ter transmitted through the post-office, hereby dispense with the deposit of any papers therein.) Short Form of Order for Cita- tion and for Ser- vice of same by Publication com- bined. Surrogate's Court, County of Present : Surrogate. In the matter of Proving the Last '^ Will and Testament of Deceased. On reading and filing the petition of propounding the Last Will and Testament of late of the of in the County of Westchester, deceased, for probate : It is Ordered, that a citation issue to the proper persons, pursuant to the prayer of said petition, requiring them to appear in this court, on the day of 189 at o'clock in the forenoon of that day, at the Sur- rogate's office in the of to at- tend the probate of said will. PROCEEDINGS IN SUBKOGATES* COURTS. 89 It is further Ordered, that service of said cita- tion upon the person hereinafter named of said decedent non-resident of this State, be made by publica- tion thereof in the two newspapers published in said County, called not less than once in each of six successive weeks ; or, at the option of the petitioner by delivering a copy of the said citation, without the State, to each of said person in person, at least days before the return day thereof. And it is further Ordered, that on or before the day of the first publication of said citation, the petitioner deposit in the post-office at a copy of said citation and this order, contained in a securely closed postpaid wrapper, directed to the following named person at the place below named, and set opposite name to wit : The provisions of the Code contained in § 2524, as amended by chapter 606 of Laws of 1899, now read as follows (the amendment of 1899 is italicised) : Where an order, directing the service of a citation without the state, or by publication, is made as prescribed in either of the last two sections, the party applying therefor must produce proof, by affidavit or otherwise, to the satisfaction of the surrogate, that the case is one of those specified in those sections. The order must direct that service of the citation, upon the person named or described in the order, be made by publication of the citation in two newspapers, designated as prescribed in this article, unless from the peti- tion it appears that the estate amounts to less than two thou- sand dollars, in which case only one neivspaper shall be designated, for a specified time, which the surrogate deems reasonable, not less than once in each of six successive weeks ; or, at the option of the petitioner, by delivering a copy of the citation, without the state, to each person so named or described, in person, and if the person to be served is an infant under the age of fourteen years, also to the per- son with whom he is sojourning, or, if the service is made 90 STJKEOGATES' COURTS. upon a corporation, to an officer thereof specified in sec- tion four hundred and thirty-one or four hundred and thirty- two of this act. It must also contain either a direction that on or before the day of the first publication, the petitioner deposit, in a specified post-office, a copy of the citation and of the order, contained in a securely closed postpaid wrapper, directed to the person to be served, at a place spe- cified in the order, and if the person to be served is an in- fant under the age of fourteen years, a further copy, likewise contained in a securely closed postpaid wrapper, directed to the person with whom such infant is sojourning or, a state- ment that the surrogate, being satisfied, by the affidavit upon which the order was granted, that the petitioner cannot, with reasonable diligence, ascertain a place or places where the person to be served would probably receive matter transmit- ted through the post-office, dispenses with the deposit of any papers therein. § 2524, Code Civil Proc. § 10. What mode of service depends on. — The foregoing section shows clearly when the practitioner may resort to sub- stituted service or service by publication . And, it may be added, in any of the six cases therein set forth the mode of service is thereby covered. But this all relates to adults and infants over fourteen years of age. In the cases of infants under fourteen years and of persons without legal capacity, such as, habitual drunkards, idiots, lunatics, etc., there are additional requirements to be observed, which may also in the discretion of the Surrogate be extended to the case of an infant of four- teen years and upwards. This is the language of the Code in this regard : Where a person, cited or to be cited, is an infant of the age of fourteen years or upwards, or where the surrogate has, in his opinion, reasonable grounds to believe that a person, cited or to be cited, is an habitual drunkard, or for any cause mentally incapable adequately to protect his rights, although not judicially declared to be incompetent to manage his affairs, the surrogate may, in his discretion (see Matter of Stephen, 2 N. Y. Supp. 36), with or without an applica- tion therefor, and in the interest of that person, make an or- der requiring that a copy of the citation be delivered, in behalf of that person, to a person designated in the order ; PROCEEDINGS IN SURROGATES* COURTS. 91 and that service of the- citation shall not be deemed complete until such deliverj'. Where the person, cited or to be cited, is an infant undei^ the age of fourteen years, or a person judicially declared to be incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness, and the surrogate has reasonable ground to believe that the in- terest of the person, to wliom a copy of the citation was de- livered, in behalf of the infant or incompetent person, is adverse to that of the infant or incompetent person, or that, for any reason, he is not a fit person to protect the latter's rights, the surrogate may likewise make such an order; and as a part thereof, or by a separate order, made in like man- ner at any stage of the proceedings, he may appoint a special guardian ad litem to conduct the proceedings in behalf of the incompetent person, to the exclusion of the committee, and with the same powers, and subject to tlie same liabilities, as a committee of the property. § 3537, Code Civil Proc. This section it will at once be seen, provides for an extra ser- vice, in addition to the regular service required to be made on infants or incompetents. Matter of Cartwright, 3 Dem. 13. Such regular service is made precisely as service of a summons is made in analogous cases. See Code Civ. Proc. § 2526. Service of a citation must be made upon an infant under the age of fourteen years, a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, or a corporation, in the manner pre- scribed for personal service of a summons upon such a per- son, or upon a corporation, in article first of title first of chapter fifth of this act. Service upon a person non compos not in compliance with this section will be good ground for reopening the decree en- tered if the interests of the incompetent person so require {Matter of Toulon, QQ Hun, 199), and the same is true as to an infant. Potter v. Ogden, 136 N. Y. 384. § 11. Who may serve the citation % — Any person, even though a party to the special proceeding, may serve a citation. Code Civ. Proc. § 2520. Thus a service by an executor or legatee has been upheld. Wetmore v. Parker, 7 Lansing, 121, affirmed in 52 N. Y. 450, 456. But Rule 18 of the General Eules of 92 surrogates' courts. Practice is undoubtedly applicable, to wit: that no service shall be niade by any person who is less than eighteen years of age. § 12. Time of service. — The next requirement is time within which service of citation must be made. See concise discussion by Coffin, S., in Matter of Porter, 1 Misc. 489. The object of the citation is to apprise the person cited of the claim which the petitioner makes in time sufficient to enable him to prepare to meet it. What is sufficient or reasonable time is now fixed by law. And the time so limited varies with the mode and place of service. 1. If personal service is made in the Surrogate's county, or an adjoining county, it must be made at least eight days before the return day named in the citation. Code Civ. Proc. § 2530. 2. If personal service is made in any other county, it must be made at least fifteen days before such return day. Ibid. Matter of Washhurn, 12 Misc. 242, overruling Matter of Por- ter, 1 Misc. 489. 3. If service is made by delivering a copy of the citation without the State, pursuant to the order in such case required, it must be made at least thirty days before such return day provided it is made within the United States, and at least forty days before if made without the United States. Matter of Merritt, 5 Dem. 544 ; Code Civ. Proc. § 2525. 4. If service is made by publication the notice required is fixed by the order directing publication. For that order re- quires publication not less than once in each of six successive weeks and must contain a direction that on or before the day of the first publication the petitioner deposit in a specified post office a copy of the citation and of the order addressed to the party cited. This cannot be dispensed with unless the Surrogate is satisfied by affidavit that the petitioner cannot with reasonable diligence ascertain a place to which to ad- dress such a copy. Code Civ. Proc. § 2524. We can there- fore say that in the case of service by publication the time re- quired is six weeks. See Estate of Koch, 12 N. Y. Supp. 94. § 13. Proof of service. — If personal service has been made, proof of such service is made by the affidavit of the person who delivered the citation ; and such affidavit should state con- cisely the important facts, that deponent is over eighteen years of age, that on a given day (not " on or about " a day named, PROCEEDINGS IN SURROGATES' COURTS. 93 which will be fatally defective, Sm.ythe v. Rowe, 4 Law. Bull. 60) he served the within, or annexed, citation on the person to whom it was directed, whom he knew to be such person; then stating mode of service, as, for example, where a copj'^ of the petition is required to be served with it " by delivering to and leaving with him a copy thereof together with a copy of the petition " on which the same was issued. Where the party served is an infant or incompetent, the additional service re- quired must be alleged. Proof of the publication of the cita- tion must be made by the affidavit of the printer or pub- lisher, or his foreman, or principal clerk. Proof of deposit in the post office, of a paper required to be deposited must be made by the affidavit of the person who deposited it. Code Civ. Proc. §§ 2524, 444. See also § 2532, C. C. P. § 14. Appearance. In a surrogate's court, a party of full age may, unless he has been judicially declared to be incompeteut to mauage his affairs, prosecute or defend a special proceeding, in person or by attorney regularly admitted to practice in the courts of record, at his election, except in a proceeding to punish him for contempt, or where he is required to appear in person, by special provision of law, or by a special order of the surro- gate. The appearance of a party, against whom a citation has been issued, has the same effect, as the appearance of a defendant, in an action brought in the Supreme Court. § 3538, Code Civil Proc. See § 9 on p. 335 as to waiver of issuance and service of citation. See also Laws of 184Y, chap. 470, § 46, and repeal of same by Laws of 1880, chap. 245, § 1, subd. 24 ; also Laws of 1870, chap. 359, §2, applying only to New York County now made general by above section. But there is this difference, that, inasmuch as the jurisdiction of a Surrogate or of his court is statutory a voluntary appearance in a special proceeding is wholly without effect if the jurisdiction has been lost, by lapse of time, or by other cause. Thus " where a Surrogate has lost jurisdiction of a cause by failure to serve a citation within the time prescribed by stat- ute, the error is not cured by a voluntary general appearance, which, by Code Civ. Proc. § 424, is made equivalent to per- sonal service of process, the objection being not that there has been no service,, but that service has not been made within the 94: surrogates' courts. requisite time." From official syllabus, Pryer v. Clapp, 1 Dem. 387. But where there is merely an alleged defect- in the petition affecling jurisdiction over the person, his voluntary general ap- pearance has been held to be a waiver of such defect. Peters V. Carr, 2 Dem. 22, citing Hoag v. Lament, 16 Abb. N. S. 91, 96 ; Sawmill Co. v. DocTc, 3 Dem. 55 ; Matter of Hitchler, 21 Misc. 417. § 14a. Non-resident — Appearance for. — An attorney ap- pearing for a non-resident will, in New York County, be re- quired to file written proof of retainer, or authority to appear, or his appearance will be ignored, and service of citation re- quired. Matter of Dusenbury, 33 Misc. 166 ; Estate of Weiss, Surr. Decs. 1896, p. 597. § 15. Special appearance.— A party to a special proceed- ing in a Surrogate's Court may of course appear specially, as, for instance, solely for the purpose of objecting to the juris- diction on appropriate grounds. But it must be remembered that such an appearance must not be encumbered with any plea to the merits, as no protest of limited appearance can in such case avail to prevent the appearance from being deemed a general one. See Reed v. Chilson, 142 N. Y. 152. Thus where the person served claimed in his answer upon the return of a citation that the order for its service was irregular and juris- diction had therefore not been acquired, he was held to have waived it because he went further, and raised objections on the merits to petitioner's claim. Matter of Macauley, 27 Hun, 577, 578, and 94 N". Y. 574, citing Barrard v. Burrowes, 2 Eobertson, 213. And where a party cited to appear on the probate of a will, appeared by counsel, and his written appear- ance was filed with the court, and he made no objections on the probate, held that the court had full jurisdiction over him, although the fact that the will was one executed in duplicate, was not stated in the petition. Qrossman v. Grossman, 2 Dem. 69, 80, citing Allen v. Malcolm, 12 Abb. N. S. 335, and Morrell v. Dennison, 8 Abb. Pr. 401. A general appearance will cure void service, thus, where persons cited were non-residents, and the citation was served not by publication nor personally without the State, but was served within the State, and therefore the service was void, it was held that a personal appearance without objection by the PEOCEBDINGS IN SXJEEOGATES' COUETS. 95 non-resident would have obviated this defect. Matter of Por- ter, 1 Misc. 489, 490. § 16. Waiver.— Where there is no contest, and all the parties are willing and competent so to do, they may execute formal waivers of the issuance and service of a citation and consent to the granting of the relief prayed in the petition. If this be done, the fact should be alleged in the petition. See Matter of Gregory, 13 Misc. 363, holding that waiver of service can- not be accepted in lien of the issuance and service of citation. Infants cannot waive service of the citation although a guard- ian can by a notice of appearance give the court jurisdiction. Thistle V. Thistle, 5 Civ. Proc. R. 43. By this is meant a gen- eral guardian not ineligible by reason of having any interest adverse to the infant's. For no special guardian ad litem, is appointed until the citation has actually been served on the infant (see Ingersoll v. Mangam, 84 N. Y. 622 ; Davis v. Crari- dall, 101 id. 311-321 ; Grouter v. Crouter, 133 id. 56 ; Potter V. Ogden, 136 N. Y. 384, 392), nor before the return day unless the infant petitions for an appointment. Matter of Leinkauf 4 Dem. 1, 2. The guardian, whether general or special, can thus never waive service of a citation. § 17. Formalities of pnWication. — The provisions regarding the cases in which service of the citation by publication may or must be made have been already given. The modus oper- andi remains to be discussed. If the circumstances exist covered by sections 2522 and 2523 the order directing service by publication is applied for upon af- fidavits, or such other proof as may satisfy the Surrogate, stating facts showing the case to be one under one of such sections. The order must direct (see section 2524) that service of the citation upon the person named or described in the order, be made by publication of the citation in two newspapers, des- ignated as prescribed in this article (which includes §§ 2115- 2538) for a specified time, which the surrogate deems reason- able, not less than once in each of six successive weeks ; or, at the option of the petitioner, by delivering a copy of the citation, without the state, to each person so named or de- scribed, in person, and if the person to be served is an infant under the age of fourteen years, also with the person with whom he is sojourning, or, if the service is made upon a cor- 96 StTKEOGATES' COURTS. poration, to all ofHcers thereof specified in sections 431 or 432 of this act. It must also contain a direction that on or before the day of the first publication the petitioner deposit, in a specified post-offlce, a copy of the citation and of the order, contained in a securely closed postpaid wrapper di- rected to the person to be served, at a place specified iu the order, and if the person to be served is an infant under the age of fourteen years, a further copy, likewise contained in a securely closed postpaid wrapper, directed to the person with whom such infant is sojourning ; or a statement that the surrogate being satisfied, by the affidavit upon which the order was granted, that the petitioner cannot with reasonable diligence, ascertain a place or places where the person to be served would probably receive matter transmitted through the post-offlce, dispenses with the deposit of any papers therein. The whole publication may be vitiated if the order is not cor- rectly framed. Every requirement of the statute must be ob- served {Sawmill Co. v. Dock, 3 Dem. 55, 56), unless there be a voluntary appearance by adults. As the provisions of the section are very similar to those of section 4iO relating to the order for publication of summons decisions under that section are applicable. Thus see Smith v. Wells, 69 N. Y. 600, vrhere copy summons and complaint was deposited in post office but addressed differently than required in the order. And Brisbane V. Peahody, 3 How. 109, where publication was made in a paper other than one designated in the order, and see generally notes to section 440 in Stover's Code, 6th ed. The directions of the order must be strictly followed. , § 18. Papers in which publication should be made. — The act "to designate a state paper" (Laws, 1854, chap. 197) is now repealed (see Laws, 1884, chap. 133, and Laws, 1885, chap. 262) and the practitioner is only concerned with the papers designated in the order. Where the Code directs publi- cation of a citation, or the service thereof by publication, the publication must be published in a newspaper published in the county. Code Civ. Proc. § 2535. When the Surrogate thinks that the person or persons in- tended to be served or notified can be given surer notice, he may, in his discretion, direct additional publication in any other newspaper, either in the same or in another county. Ibid. PROCEEDINGS IN SURROGATES' COURTS. 97 "Within ten days after the publication is complete, proof by affidavit of the publishers, printers, or foreman, or one of them, of the publication in the newspaper in which the publication was made shall be made and tendered to the attorney or other person ordering or directing such publication. But delivery is not compulsory in case of private persons until payment of the bill for the publication. Laws, 1884, chap. 133, § T. § 19. Time of publication — The Code provides as a mini- mum time during which the publication must continue "not less than once in each of six successive weeks." Code Civ. Proc. § 2524. And in section iiO the words used are " not less than once a week for six successive w^eeks." There is no longer any uncertainty as to just what this means. The publication is not complete until the expiration of forty- two days from the first publication excluding the first day. Richardson v. Bates, 23 How. Prac. 516 ; Board v. Heyman, 3 Abb. Prac. (IST. S.) 396; Matter of Koch, 19 Civ. Proc. Eep. 165. That is, there is required a full six weeks' consecutive publication, and not merely six publications in six different weeks. Market Nat. Bank v. Pacific Nat. Bank, 11 Abb. N. C. 104 ; 89 ]Sr. Y. 397, 400, where the court says, " Section 400 provides for publication for a specified time, ' not less than once a week for six successive weeks.' The number of weeks is speci- fied and not the number of times ; section 441 declares that the time shall be complete upon the day of the last publication, and section 787 that the period of publication must be completed so as to include the day which completes \hQ full period of publica- tion. It will be perceived that the publication must be made for a specified period of time, and when the statute provides for six weeks it is obvious that this period will not elapse prior to its expiration. It does not provide for a publication six times within six weeks, but ' for a time not less than once a week for six successive weeks.' The publication evidently means rather more that printing the notice. The law intended a full six weeks' publication, and not six times in six different weeks." An illustration will make this very clear. An attorney under an order for publication publishes a citation Satur- day, January 5; Friday, January 11; Thursday, January 17; Wednesday, January 23 ; Tuesday, January 29, and Monday, February 4, 1895. Here are six publications — once a week and in six successive weeks — and yet under this decision, and all 7 98 SUKKOGATES' COUETS. the decisions, insufficient, for instead of giving six weeks' or 42 days' notice to the person published against and intended to be thereby notified, it gives him four weeks' and two days', or 30 days' in all, notice, which is a serious discrepancy. See Waters v. Waters, 7 Misc. 519. However it is not necessary to show publication on the same day of each week ; it is sufficient if made on any day of each week for the requisite number of weeks, provided six Aveeks' notice be given. See Wood v. Knapp, 100 N. Y. 109, 114, and cases cited, noting distinction in circumstances. If, while the pubHcation is progressing, personal service with- out the State be made, it would be unnecessary to complete the publication, although the service would not be complete until the time prescribed for the publication has expired ; that is to say, personal service without the State, under an order for ser- vice by publication, is only equivalent to publication. Fiske v. Anderson, 33 Barb. 71. Where publication must be in two papers, it has been held, under section 440, that publication must be continuous in each, not necessarily concurrent. Herbert v. Smith, 6 Lans. 493. In case the death of a petitioner abates the proceeding the publication terminates, if incomplete on the day of such death. Beilly v. Hart, 65 Hun, 465, affirmed 130 N. Y. 625. CHAPTER n. PAETIES. § 1. Infants. — Parties in Surrogates' Courts are differen- tiated either as adults or as infants. Infants are divided un- der two classes : infants under 14, and those of or over 14 years of age. All infants must appear by guardian ; this is manifest from the wording of sections 2527 and 2530 of the Code of Civil Procedure. Section 2527 in part provides, that where a person cited or to be cited in a proceeding in the Sur- rogate's Court is an infant, the Surrogate may incidentally in his order for additional precaution iu the service of the cita- tion provided for by the section, or by a separate order at any stage of the proceedings appoint a special guardian ad litem to conduct the proceedings. See also Matter of Watson, 2 Dem. 642. Section 2530 is as follows : Where a party, who is an infant, does not appear by Ms general giiardiau ; or where a party, who is a lunatic, idiot, or habitual drunkard, does not appear by his comraittee, the surrogate must appoint a competent and responsible person, to appear as special guardian for that party. Where an in- fant appears by his general guardian, or where a lunatic, idiot, or habitual drunkard, appears by his committee, the surrogate must inquire into the facts, and must, in like man- ner, appoint a special guardian, if there is any ground to suppose that the interest of the committee or general guard- ian is adverse to that of the infant, or incompetent person ; or that, for any other reason the interests of the latter re- quire the appointment of a special guardian. A person can- not be appointed such a special guardian, unless his written consent is filed, at or before the time of entering the order appointing him. § 3530, Code Civil Proc. The general guardian is entitled to represent his -wards un- less their interests require that they should be represented by a special guardian, or unless there is ground to suppose that the interest of the general guardian is adverse to that of the (99) 100 SITKEOGATES' COURTS. infant. Farmers' L. & T. Co. v. M'Kerina, 3 Dem. 219. And in New York County Rule 12 provides as follows : " Whenever an infant interested in any proceedings in said Surrogate's Court has a general guardian, no decree will be entered without appointing a special guardian to represent said infant's interest therein, unless such general guardian shall hie his appearance in writing and his affidavit of no ad- verse interest, as required by Eule 10, with the clerk of said Surrogate's Court." {Farmers' L. (& 2\ Co. v. M'lienna, supra.) Where there is a general guardian therefore, he is primarily entitled to appear and no appointment of a guardian ad litem is in such a case proper unless it be affirmatively shown upon the inquiry by the Surrogate into the facts, either, that there is ground to suppose that his interest is adverse to that of the infant, or that for any other reason the interests of the latter require the appointment of a special guardian. If it is in- tended therefore where there is a general guardian, to apply for the appointment of a guardian ad litem; notice of such ap- plication must be first given to the general guardian. Farm- ers'" L. c& T. Co. V. M^Kenna, supra. A foreign guardian ma}' petition for appointment of special guardian of his infant. Rogers v. McLean, 34 N. Y. 536; Freund v. Washhw-n, 17 Hun, 543. If there is no general guardian, or if his right to represent the infant is lost by reason of the causes specified in section 2530, then the Surrogate must appoint a special guardian. In transfer tax proceedings where the infant's interest is not presently involved, the appointment of a special guardian is unnecessary. Matter of Post, 5 App. Div. 113. § 2. Upon whose application special guardian may be ap- pointed. — Where the infant is over the age of 14 years, it is proper that the petition for the appointment of a special guardian be made by the infant. Where the infant is under the age of 14 years, it is customary that the application be made on his behalf by his parent or next friend. Eule 10 of the Surrogate's Court in the County of New York provides : " No special guardian to represent the in- terests of an infant in any proceeding in said Surrogate's Court will be appointed on the nomination of a proponent or the accounting party, or his attorney. See Matter of Henry, 2 PAKTIES. Howd. K S. 250. The right of the infant to apply for W|J appointment is undoubted. It is directly inferable from sec^ tion 2531, which is as follows : "Where a person, other than the infant, or the committee of the incompetent person, applies for the appointment of a special guardian, as prescribed in the last section, at least eight days' notice of the application must be personally served upon the infant, or incompetent person, if he is within the state, and also upon the committee, if. any, in like man- ner as a citatioa is required by law to be served. But, ex- cept in a case specified in title fifth of this chapter, the surro- gate may, by an order to show cause, prescribe a shorter time, and direct the service of the order to be made in such a manner as he deems proper. The application may be made at the time of presenting the petition, and, in that case, the order to show cause may, in the surrogate's discretion, ac- company the citation. § 3531, Code Civil Proc. See also Matter of Ludlow, 5 Eedf . 391, 392. In the third place the Surrogate has the right to appoint upon his own motion. It is not necessary where there are in- fant parties, that any application should be made for the ap- pointment of a special guardian, either prior to or on the re- turn day. If on the return of the citation no application for the appointment of such a guardian has been made by any one voluntarily, whether b}' the infant or by his next friend, or any other person, the Surrogate ma}'^ of his own motion ap- point a person to protect the interests of the infant ; in such a case it is immaterial whether the infant is under or over the age of 14, as the consent of the infant is not necessary to the appointment. BricFs Estate, 15 Abb. Pr. 12. See also Mat- ter of Seahra, 38 Hun, 218. Unless the infant is represented by general or special guardian, he is not properly a party to the proceeding. The failure to appoint the guardian ad litem is an irregularity, if the objection is properly made {Frost v. Frost. 15 Misc, 167), but it does not affect the jurisdiction of the court over the proceeding generally, and therefore upon the discovery of the irregularity the court may appoint a guard- ian nunc fro tunc. See Rinia v. Rossie Iron Works, 120 N. Y. 433. But this will not avail to prejudice the infant's rights. Matter of Bowne, 6 Dem. 51. 102 surrogates' courts. It is manifest from the wording of section 2531 above quoted that the notice thereby required to be given, does not apply to cases where the Surrogate himself appoints a special guardian of his own motion. Matter of Monell, 19 N. Y. Supp. 361. The object of the service of the notice thereby prescribed is to enable the infant to have some one appear upon the application and prevent the appointment of a person in any respect un- suitable or having interests in any way adverse to those of the infant. See Plnckney v. Smith, 26 Hun, 524. Where the county judge acts as Surrogate, he has the power to appoint a guardian ad litem in proceedings pending in the Surrogate's Court, and an error by which the order appointing the guardian is entitled in the County Court does not invali- date the appointment, as it will be presumed that he acted in the capacity in which he had a right to make the appointment. See Albrecht v. Canfield, 92 Hun, 240. § 3. When application should be made It is manifest in the first place, that no appointment of a special guardian in the Surrogate's Court, can be made for an infant not a party to the proceeding. Surrogate Coffin held {Matte?' of Watson, 2 Dera. 642) that it was wholly incompetent for him to appoint a special guardian of an infant purposing to initiate a proceed- ing for the probate of a will. There is no statutorj^ provision requiring an infant to insti- tute a special proceeding in a Surrogate's Court by special guardian. The infant may present his petition upon which the Surrogate issues his citation ; when this has been done the petitioner is a party to a proceeding, and, on the return day of the citation, if it appears that the party is an infant, the Surro- gate must appoint a special guardian for him. The first rule therefore to observe is, that the infant must be a party to the proceeding before the appointment can be made. Therefore if the infant is not the petitioner in the proceeding, an applica- tion for the appointment of a special guardian is premature and the appointment wholly irregular if made prior to the service upon the infant of the citation in the proceedings which makes him a party ; and if the service is irregular it is not regularized by mere proof that a special guardian was actually appointed. See Hngle v. Hogle, 49 Hun, 313 ; Davis v. Crandall, 101 N. Y. 311. And similarly, if service of citation has been had upon the PARTIES. 103 infant unlawfully or irregularly it will vitiate the appointment of the special guardian. See Potter v. Ogden, 136 if. Y. 384, where the second headnote concisely states the rule as follows : " The appointment of a special guardian for an infant in pro- ceedings in a Surrogate's Court is void, unless previous to such appointment jurisdiction over the infant has been acquired by the service of a citation in the manner prescribed by law." Where the Surrogate makes the appointment of his own motion, it is manifest that he cannot appoint until the return day of the citation. The provisions of sections 468 to 477 of the Code, regulating the mode in which infants may bring and defend actions, do not apply to special proceedings in Surrogates' Courts. One reason why the Surrogate cannot appoint before the return day is, that there may be a general guardian who is not bound to appear for the infant until the return day ; and where at the time the petition is made and the citations issued there is no general guardian of the infant yet non constat but that a general guardian may be appointed before the return day, even by the Surrogate of another county, and Surrogate Coffin ac- cordingly held, that an application by an infant party for an appointment of a special guardian, made before the return day was premature for this reason. Matter of LeinTcauf, 4 Dem. 1. This decision however should not be extended so far as to prevent the making of the application by the infant or by some person other than the infant before the return day. In the latter case under section 2531, it is distinctly provided, that the application may be made at the time of presenting the petition. And where the infant is over fourteen years of age, and desires to nominate his guardian ; or where the parent or next friend desires to nominate a guardian for an infant under fourteen years of age it is proper to file the petition looking to such appointment after the infant shall have been duly served with the citation. The proposed order should be submitted with the petition, and will usually be signed by the Surrogate upon the return day. Similarly where it proves necessary to serve the infant with the citation by publication an appoint- ment of a special guardian prior to the expiration of the time during which publication must be made, is premature and ir- regular. Darrow v. Calkins, 154 N. Y. 503. The person who is entitled to appear as general guardian of the infant, must 104 surrogates' courts. be one actually and legally such general guardian. The parent of the child as guardian in socage, by nature, or otherwise has no right to appear in the capacity of general guardian ; and where through oversight a parent has so appeared for infant parties, in a probate proceeding, even in good faith, the rights of the infant are in no respect concluded, nor can the Surro- gate subsequently to the making of the decree attempt to reg- ularize the proceedings by appointing the parent special gaav- disLXi nuncpro tunc. Matter of Bowne, &J)em.. 51. The power to appoint nunc pro tunc must be exercised during the life of the proceeding (see Saltus's Estate, 1 Tucker, 230), and has been exercised almost uniformly only in cases where the infant was actually served and a party to the proceeding, and never it is believed has it been exercised for the purpose of attempting to make the infant a party of record to proceedings in which jurisdiction of the person of such infant was not in fact had by the Surrogate. § 4. Formalities of appointment. — Where the Infant or some one upon his behalf applies for the appointment of a guard- ian ad litem, the appUcation is made by petition duly verified substantially as follows : Surrogate's Court, County of Petition by in- Title. X fant over 14 years of age for To the Surrogate's Court of the County of the appointment of Special Guard- The petition of respectfully shows : **"• I. That he is an infant over 14 years of age, and was years of age on the day of 18 n. On information and belief that on the day of 18 [Here state the nature of the proceeding, as for example, the last wiQ and testament of late of deceased, was duly filed in the office of the Surrogate in the county of for probate, which said will is a will of real, (or of personal) property (or of real and personal property), and proceedings for the PARTIES. 105 Note. Where the petitioning in- fant has a general guardian state the facts in reference to such guardian. Petition where infaut is under the age of 14 years. Note. Note. Where the application for the appoint- ment of special guardian is on be- proof of such will are now pending before said Surrogate.] III. That your petitioner is one of the parties named in the citation issued in said proceeding (or that your petitioner was made a party to the above proceedings by an order of this court, made the day of 18 ) and that the citation (or supplementary citation) in such proceeding was duly served on your petitioner on the day of 18 that he has no general guardian in the State of New York, (note) that your petitioner's parents are living (or that your petitioner's father or mother is the only Kving parent) and that petitioner resides at in the State of with IV. Your petitioner therefore prays the ap- pointment of Esq., counsellor at law of as his special guardian in the above enti- tled proceeding, to appear for the petitioner and to protect his interests therein (add, in New York County, and he has not been influenced in making this application for the appointment of such special guardian by any person.) V. That no previous application for this relief has been made (or if previous application has been made, state the' facts and the action of the Surrogate.) Wherefore the petitioner prays that an order of this court may be made appointing the said Esq., counsellor at law, as special guar- dian of the petitioner, to appear for him and protect his interests herein. (Verification.) (S^nature.) Surrogate's Court, County of Title. I To the Surrogate's Court of the County of The petition of I. That is an respectfully shows : infant under the age of 106 STJKROGATES' COURTS. half of a infant under 14, tlie ap- plication should be made by one of the child's par- ents or it an or- phan by its gen- eral guardian, and if there is no gen- eral gufirdian, its next friend or any party to the pro- ceeding not ex- cluded by the rule may petition for the appoint- ment. Note. Under §2530 the infant ma]/ appear by general guardian ■without action by Surrogate, but if the general guar- dian petitions for appointment of third person state any reason, such as adverse interest, why ap- pointment of spe- cinl guardian is necessary. years and was years of age on the day of 18 that said infant is a necessary party in the above entitled proceedings being a (legatee, or devisee or next of kin or state relationship) of late of the county of deceased, and was duly served with the citation herein on the day of 18 II. That your petitioner is {here state relationship of petitioner to the infant on whose hehalf application is made)oi the said infant and that said infant resides with at III. That said infant has no general guardian (or if it has a general guardian state the particulars'). Note. IV". The petitioner on behalf of said infant alleges that it is necessary that a special guardian of said infant be appointed in the above en- titled proceedings, to appear for such infant and to protect his interests therein. V. That no previous or other application for this relief has been made. Wherefore this petitioner prays that an or- der of this court may be made appointing Esq., counsellor at law, of as a special guardian to appear for said infant and to protect his interests herein. (Verification.) (Signature.) In the county of New York Kules 10 and 11 of the Surro- gate's Court carefully define the precautions in favor of infants and are as follows : Rule 10. " No special guardian to represent the interests of an infant in any proceeding in said Surrogate's Court will be appointed on the nomination of a proponent or the accounting partj', or his attorney, or upon the application of a person having an in- terest adverse to that of the infant. To authorize the appoint- ment of a person as a special guardian on the application of an infant or otherwise in a proceeding in this court, or to entitle PARTIES. 107 a general guardian of such infant to appear for him in such proceeding, it must appear that such person, or such general guardian, is competent to protect the rights of the infant, and that he has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of or any party to the proceeding. Where the application for the ap- pointment of a special guardian is made by another than the infant, or where the general guardian appears in behalf of the infant, it must appear that such applicant or general guardian has no interest adverse to that of the infant. Note. Where mother of an infant under 14 is disqualified by adversity of in- terest from applying, the Surrogate may impute the same adver- sity of interest to a sister of the infant. Estate of Conrad Stein, Law Journal, June 17, 1902, citing Estate of S. Shethar, Surr. Decs. 1898, p. 387; Estate of E. Schaeffer, Law Journal, March 10, 1900 ; Estate of I. Meyer, Surr. Decs. 1901, p. 18. No party to a proceeding will be appointed special guardian of any other party thereto. If such applicant or general guardian is entitled to share in the distribution of the estate or fund in which the infant is interested, the nature of the interest of such applicant or general guardian must be disclosed. The applica- tion for the appointment of a special guardian as well as the appearance filed by a general guardian of a minor must, in every instance, disclose the name and residence and relation- ship to the infant of the person with whom the infant is resid- ing, Avhether or not he has a parent living, whether or not such parent has knowledge of and approves such application and appearance ; and such knowledge and approval must be shown by the affidavit of such parent. If the infant has no parent living, like knowledge and approval of such application or ap- pearance by the person with whom the infant resides must be shown in like manner. Where such application is made by an infant over the age of 14 years, his petition must show and be accompanied by the affidavit of the parent (in case the latter has an interest adverse to that of the infant), showing, in ad- dition to such knowledge aforesaid, that such parent has not influenced the infant in the choice of the guardian." Rule 11. "In any proceeding for a judicial settlement of the account, wherein a special guardian shall be appointed or a general 108 surrogates' courts. guardian shall appear to protect the interests of an infant party to such accounting no decree will be entered as upon default against such infant, but such decree shall be so entered only on the written report of the guardian appearing for such infant that he has carefully examined the account and finds it correct, and upon two days' notice to the guardian of the settlement thereof." The competency of the person sought to be appointed as spe- cial guardian is shown by means of the consent and affidavit required of the person nominated to be filed with the applica- tion or at or before the time of entering the order appointing him. See section 2530. The following forms are suggested : Consent of Surrogate's Court, County of special guardian. ' [■ I counsellor at law, hereby consent to be appointed by the Surrogate of the County of the special guardian of an infant, for the sole purpose of appearing for and taking care of his interests in the above entitled proceedings, and I hereby state that I have no interest in said proceedings adverse to that of said infant and am not connected in business with the attorney or counsel of or any party hereto. (Dated.) (Signature.) (Acknowledgment.) This consent of the special guardian ought to be acknowl- edged, but a failure to properly acknowledge it has been held not to be a jurisdictional defect but an irregularity. Sheel v. Cohen, 55 Hun, 207, 210, citing ToUn v. Carey, 34 Hun, 432. In the case cited the General Term held, that an order made on consent of all the parties who had appeared permitting the proper acknowledgment to be filed nunc pro tunc validated the appointment, having been timely made. This was in an action involving rights in real property and would probably be held applicable in a Surrogate's Court, but not to the extent of cutting off rights of an infant party. PAETIES. 109 Surrogate's Court, AffldaTit of County of special guardian. Title. ) State of New York County of ®^' ' being duly sworn deposes and says : I am a counsellor at law in having at office at I reside at I am perfectly able and competent to protect the interests of an infant party to the above entitled proceedings ; I have no interest adverse to that of said infant ; I am not connected in business with the attorneys or counsel for the proponent (or where proceeding is other than for the i^i'ohate of a will, describe the peti- tioner) ; I am of suflflcient ability to answer to said infant for any damages which may be sus- tained by reason of my negligence or misconduct in this proceeding ; and am worth the sum of dollars, over and above all debts and Lia- bilities, besides property exempt by law from levy and execution. (Jurat.) (Signature.) Where the application is made by an infant over fourteen years of age it is proper to submit also the affidavit of parent or person with whom the infant resides indicating the relation- ship of such infant, and whether or not the parent or other person has knowledge of and approves the application. This affidavit may be substantially as follows : Surrogate's Court, County of Title. I with whom in- state of New York > fant resides. County of | Affidavit of parent or person being duly sworn deposes and says : I reside in I am {state whether father or mother, or what relation 110 STJRKOGATES' COUETS. deponent sustains to the infant) of an in- fant party to the above entitled proceedings; the said infant resides with me and is now years of age ; I have no interest in the above entitled proceedings in any manner or form {or if affiant lias an interest state tchatitis) ; I have not influenced my in any way as to the appointment of a special guardian or in this ap- plication ; but he has made such application of his own volition and without any influence from me ; I have knowledge of this application now being made by my said for the appoint- ment of Esq., as his special guardian, and approve of such application as I am well acquainted with said and believe him in every respect competent to protect the interest of my said in the proceedings pending. (Jurat.) (Signatui-e.) Upon the return day the Surrogate may make the order appointing the special guardian substantially in the following form : Surrogate's Court. Caption. Present : Hon. Surrogate. Order appoint- Title. \ ills' special g^uar- ) dian. It appearing to my satisfaction by the verified petition herein of an infant over the age of 14 years (or of the father or mother or next friend of an infant under the age of 14 years), verified the day of 18 that said one of the heirs at law (or next of kin) of the above named decedent is an infant having no general guardian, {or is an infant hav- ing a general guardian, whose interests are ad- verse to those of his said ward by reason of here state facts oonstituthig adverse interest or any other reasons making it inexpedient tl^t PABTIBS. Ill the general guardian should appear for and rep- resent the infant) (and has been duly served with the citation herein and is a party to the above entitled proceedings) . Now on reading and filing the aflldavit and consent of Esq., counsellor at law in to become special guardian for the said Infant for the sole purpose of taking care of his interests in the above entitled proceedings, It is hereby Ordered that the said be and hereby is appointed the guardian of the said infant to appear and protect his interests in this matter. Surrogate. § 5. Qualification of a special guardian. — It has been held that special guardians are the most important oiBcers in a Sur- rogate's Court, their responsibility being greater even than that of a referee. Estate of Wadsworth, 24 N. Y. St. Rep. 416. The person appointed should be a lawyer (see Sj>icer''s Will, 1 Tucker, 80), as he must be competent to protect the rights of the infant ; he must have no rights adverse to those of the in- fant and he should not be connected in business with the attor- ney or counsel of any party to the proceeding. See Ex parte Tillotson, 2 Edwards' Ch. 113 ; Ex parte Lansing, 3 Paige, 264. Eule 10 in New York County provides that no party to a proceeding will be appointed special guardian of any other party thereof. The Code in section 2530 merely requires that he be a " com- petent and responsible person." The statute thus fails to pre- scribe definite qualifications, but it has been held : "It is good practice to require the same qualifications as are required of a guardian ad litem for an infant defendant in , the Supreme Court." Story v. Dayton, 22 Hun, 450. See also Matter of Henry, 2 Howd. Pr. K S. 250. The word " responsible " means that he should be of sufficient ability pecuniarily to answer to the infant for any damage which may be sustained by his negligence or misconduct. See Spellman v. Terry, 74 N. Y. 448. It was formerly held that the appointment of a special guard- ian in the Surrogate's Court terminated with the proceeding in that court, and that if an appeal was necessary and the 112 StTREOGATES' COXntTS. infant's interest required further protection it was the prov- ince of the Appellate Court to appoint a guardian ad litem for that purpose. Schell v. Hewitt, 1 Dem. 2i9, 250, Eollins, Sur- rogate, citing Kellinger v. Roe, 7 Paige, 364 ; Underhill v. Den- nis, 9 Paige, 209 ; Chaffee v. Baptist Miss. Conv., 10 Paige, 85 ; Moody V. Gleason, 7 Cowen, 482 ; Fish v. Ferris, 3 E. D. Smith, 667. The better rule however seems to have been established by the Appellate Division, 2d Department, in a recent case {Matter of Stewart, 28 App. Div. 17), where the court denied an application for the appointment of a special guardian ad litem to take, perfect, and prosecute an appeal from a final decree of the Surrogate of Westchester County. The court by Goodrich, P. J., denied the application, on the ground that the special guardian appointed by the Surrogate is not functus officio by the rendition of the decree. The Code of Civil Procedure, section 2573, provides that where an appeal shall be taken from such a decree, " Each party to the special proceeding in the Surrogate's Court, and each person not a party who is or claims to have, in the subject-mat- ter of the decree or order, a right or interest which is directly affected thereby .... must be made a party to the appeal." And the court held that as the time to appeal could be set run- ning only by service of due notice of the entry of the decree upon the special guardian, it was manifest that the mere entry of the decree did not make \i\vi\ functus officio and that he would therefore be a party respondent to an appeal taken by another party, and that he had the undoubted right to take and prose- cute an appeal as guardian and that his duties and office con- tinued until the final determination of any appeal from the Surrogate's decree. § 6. The position of the special guardian. — The special guardian as a party to the proceeding is answerable to the court as well as to the infant ; he is an officer of the court and he must report to the court his performance of the duties imposed upon him by virtue of his appointment. This report should give a full account of the matters in his charge, and where he is ap- pointed upon an accounting or any proceeding involving the examination of papers or the performance of specific acts, his report should contain a.specific statement in regard to such examination and his conclusions as to the rights of his infant ad litem. Estate of Wadsworth, 24 N. Y. St. Eep. 416. PAETIES. 113 The Surrogate's decree will only be made upon all the papers and (in the absence of mistake) it may be said as a general rule that there is no default as to infants in a Surrogate's Court, and that no decree will usually be made affecting an infant part}', except \npon prima faoie proof that that infant's interests have been conserved. In New York County Kule 11, already quoted, emphasizes this by providing that in proceedings for the judicial settlement of an account no decree will be entered as upon default against an infant party, but only on the written report of the guardian (special or general as the case may be) who appeared for the infant, " that he has carefully examined the account and finds it correct." § 7. Adult parties — Necessary and proper parties.— There ai'e no peculiar rules covering adult parties as such, in Surro- gates' Courts, but it is proper to observe that in such courts all parties whether infant or adult fall under two designations, those who must be and those who may become parties to a pro- ceeding, i. e., necessary, and proper parties. Necessary par- ties in Surrogates' Courts are those whom the statute authorizes to initiate a proceeding, or requires to be cited by the one initi- ating the proceeding. Reference must be had to the discussion of the various proceedings, q. v. ; but an illustration is not here amiss. Upon a proceeding to probate a will the statute, to which reference must always be made, provides (Code Civ. Proc. §2614) that any person designated in the will as exec- utor, devisee, or legatee, or " any other person interested in the estate," or a creditor of the decedent, may petition for its pro- bate. That is, any person falling within any one of the fore- going designations may become the petitioner, or proponent. The persons who nmst be cited upon such petition are, if the will relates, for example, to both real and personal property " the husband, or wife, if any, and all the heirs, and all the next of kin of the testator." See Code Civ. Proc. § 2615. The first noticeable point is that " necessary " parties often, if this exam- ple be a proper criterion, are designated by a general term as members of a class, as creditors, heirs, next of kin, " persons Interested," legatees and devisees. These terms must be clearly understood at the outset. Some of them the Code itself defines. Thus, " the expression ' persons interested ' where it is used in connection with an estate, or a fund, includes every person entitled, either absolutely or contingently, to share in the estate 8 114 SUKKOGATES' COURTS. or the proceeds thereof, or in the fund, as husband, wife, leg- atee, next of kin, heir, devisee, assignee, gra«itee,.or otherwise, except as a creditor." Code Civ. Proo. §2514, subd. 11. So also " next of kin " is defined as including " all those entitled under the provisions of law relating to the distribution of per- sonal property, to share in the unbequeathed residue of the assets of a decedent after payment of debts and expenses, other than a surviving husband or wife." Id. subd. 12. But even these definitions are not suificient of themselves without further reference. An examination of the authorities covering each class will be of great assistance. § 8. Heirs. — The word heirs is intended to include those per- sons in whom the title to real property vests upon the death of another person called the ancestor (heirs are the persons related to one by blood, who would take his real estate if he died intes- tate), and the word embraces no one not thus related. Til- man v. Davis, 95 N. Y 17, 24. Nemo est lxoe,res viventis. An heir acquires property not by his own act (so one who wilfully murders his decedent forfeits his rights as heir ipso facto. Biggs v. Palmer, 115 N. Y. 506), nor by the act of the ances- tor (for he would in such event take not as an heir but as an assignee, that is by purchase), but by operation of the law, which in this State sets forth in the Statute of Descents (Kev. Stat. [8th ed.] vol. IV, p. 2463 et seq.), the persons or classes of persons on whom upon the death of an owner of property, the inheritance would be cast. These persons are thus designated : 1. Lineal descendants. 2. Father. 3. Mother. 4. Collateral relatives. This may be summarized by saying that heirs-at-law are either lineal or collateral. Among lineal heirs must now be reckoned : First, adopted children ; and second, illegitimates duly legitimatized. I. Adopted children. " A child when adopted shall take the name of the person adopting, and the two henceforth shall sustain towards each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation, includ- ing the right of inheritance," etc. (See Laws, 1873, chap. 83U, PARTIES. 115 § 10, as amended by Laws, 1887, chap. 703, and see note in 29 Abb. N. C. p. 49, on the effect of this.) II. Illegitimate children in default of lawful issue (Laws, 1855, chap. 547, IV Kev. Stat. [8th ed.] 2468. " § 1. Illegitimate children in default of lawful issue may inherit real and personal property from their mother as if legitimate; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased." See Ferris v. Pub. Admin'r, 3 Bradf. 249, held, " not to affect right to administer " of next of kin). The first act in this State making legitimate the illegitimate children of parents who married after the birth of such illegitimate children, was chapter 531, Laws of 1895, which act legitimatized all ille- gitimate children whose parents had before that time, or might thereafter, intermarry. This act provided that vested interests or estates should not be divested or affected by that act. It continued in force until it was repealed by the Domestic Relations Law (chap. 272, Laws of 1896), section 18 of which declared that " an illegitimate child whose parents have here- tofore intermarried, or shall hereafter intermarry, shall thereby become legitimate and shall be considered legitimate for all purposes, entitled to all the rights and privileges of a legiti- mate child ; but an estate or interest vested before the marriage of the parents of such child shall not be divested or affected by reason of such child being legitimatized." Section 18 of the Domestic Eelations Law was amended by chapter 725, Laws of 1899, the amendment protecting trusts created at the time of the remarriage, as well as estates or interests then vested. Matter of Baninger, 29 Misc. 457, 459. The act of 1895 and that of 1896 are retroactive, so far as they change the status of illegitimates born before the acts in question went into effect. But while all such previous illegiti- mates are from May 3, 1895, to be regarded as legitimates, with full capacity to take by descent or under the Statute of Distributions, the legislature did not intend by such legitima- tion to divest interests vested before the act of 1895, or during the illegitimacy of any child who may be under either of the acts restored by them to a state of legitimacy. Both the act of 1895 and that of 1896 contain clauses which, in terms, pur- 116 STJEEOGATES' COITRTS. port to save interests vested in the one case at the passage of the act, and in the other at the time of the intermarriage of the illegitimate's parents. Ibid. It may be said in this connection that should any uncertainty exist as to whether a certain party in any proceeding in a Sur- rogate's Court is within this or any class to whom a devise or bequest is made, that court is competent to pass upon the question. It certainly creates no occasion for appealing to the equity jurisdiction of the Supreme or any other court. (See Grouse v. Wilson, 73 Hun, 353, 356, where residuary estate was willed to testator's " heirs and next of kin, in the same proportion that is provided by the laws of the State of New York in cases of intestacy," citing Oarlock v. Vandevort, 128 N. Y. 374 ; Riggs v. Oragg, 89 N. Y. 480 ; In the Matter of Verplanck, 91 N. Y. 439.) If the word " heirs " is used by a testator to indicate the beneficiaries of a bequest of personal property, it will be interpreted as equivalent to " next of kin," the court seeking not so much for exact definitions as to carry out the intention of the testator. Tilman v. Davis, 95 N. Y. 17 ; Matter of Simheimsr, 5 Dem. 321, 322. See post "Con- struction of Wills." But the Surrogate has no jurisdiction to inquire into or set- tle the rights of heirs-at-law in real estate or its proceeds, or to divide the proceeds according to the laws of descent. Mat- ter of McKay, 37 Misc. 590, and cases discussed ; Matter of Woodworth, 5 Dera. 156, 160 ; Shumway v. Cooper, 16 Barb. 556. If an administrator receive such proceeds he will not be allowed to include them in his accoun t to the Surrogate's Court. Matter of McKay, supra. Nor can he be allowed commissions thereon. Ibid. Of course in proceedings to sell decedent's real estate to pay debts, the Surrogate's decree will distribute surplus to heirs. ^QQpost, p. 1300, § 2793, C. C. P. et seq. § 9. Next of kin.— The Code definition has been given in full in section 7. By its terms reference is necessary to the Statute of Distributions which governs every case. (IV Eev. Stat. [8th ed.J p. 2564 et seq., and see, post, under p. 1513, and under " Administration " and " Distribution of Estate." The proper primary significance of the words is " those related by blood who would take personal estate of one who dies intestate." Tilman v. Davis, 95 N. Y. 17, 25.) The terra " next of kin " is unfortunately not used with exactness. " It has been PAETIES. 117 considerably discussed whether these words used simpUoite?; mean the nearest blood relations, or mean the next of kin ac- cording to the Statute of Distributions, including those claim- ing ^g/* stirpes or by representation." Church, Ch. J., in Mur- dock V. Ward, 67 N. Y. 387, 389. The latter has been held to be the correct meaning. Slosson v. Lynch, 28 How. Prac. R. 417. The English rule was different {Fettiplace v. Gorges, 1 Yes. Jr. 46) i. e., that the husband succeeds to the wife's per- sonal estate as her next of kin. Commenting on this Chan- cellor Kent says : " It would seem to be more proper to say that he takes under the statute of distribution as husband, with a right in that capacity to administer for his own benefit." 2 Kent's Com. 136, and see cases cited. It ought to mean " nearest of kin," but that idea is expressed by saying " next of kin in equal degree," so that the practitioner must not be unprepared to find that by next of kin is often included more than one degree of relationship such as brothers and sisters, together with children of a deceased brother or sister, included by " representation." See amended subd. 12 of § 2732, 0. C. P. See Matter of Healy, 27 Misc. 352. " Next of kin " standing alone never means heirs-at-law (iV. Y. L. I. de Trust Co. v. Hoyt, Wl N. Y. 1, 9), though " heirs " has sometimes been held to be equivalent to " next of kin." Armstrong v. Oaludia, 43 App. Div. 248, 256, citing Tilman v. Davis, 95 N. Y. 17. For purposes of citation, and of making them parties to proceedings, the nearest of kin are to be ascertained. A surviving husband or wife is not within this designation. Bouv. Diet. sub. " Next of Kin ;" Redfield on Wills, 78, § 13, vol. 2 ; 2 Kent's Com. 136 ; Murdoch v. Ward, 67 N. Y. 387, 389 ; Flatt v. MicBe, 137 id. 106 ; Luce v. Dunham, 69 id. 36 ; Matter of Devoe, 66 App. Div. 1, 6, aff'd 171 N. Y. 281, and post, p. 124. It includes only 1. Children and their descendants. 2. Father. 3. Mother and brothers and sisters and the legal represent- atives of deceased brothers or sisters. 4. Collateral relatives. But such husband or wife should be cited in the proceeding, for the Statute of Distributions makes them distributees in certain cases. The statute provides in subdivision 5 : "In case there is no widow, no children and no representatives of 118 surrogates' courts. a child, then the whole surplus shall be distributed to the next of kin, in equal degree to the deceased and their legal rep- resentatives." Who are the "next of kin in equal degree" to the deceased is to be decided by the rule of the ecclesi- astical law, which has always controlled in such matters, as a part of the common law. Sweezy v. Willis, 1 Bradf. 495-497. Consanguinity is the connection or relation of persons de- scended from the stock or common ancestor. Lineal consan- guinity is reckoned in the same Avay in the canon and com- mon law, the rule being : to begin at the common ancestor, and reckon downwards, and in whatever degree the two per- sons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. The civil law, on the other hand, computes by count- ing upwards from either of the persons related, to the common ancestor, and then downwards again to the other, reckoning a degree to each person, both ascending and descending. In other words, the former start from the ancestor, the latter from the intestate, in computing the degree of consanguinity. The spiritual courts adopted the rule of the civil law in reck- oning propinquity of degree (Bl. Com. II, chap. 32 ; Co. Litt. 23 ; Williams on Exrs. 344, et seq.) and while the Statute of Distributions altered in several particulars the mode of distribution consequent upon the computation of the civil law, nevertheless when the statute directs distribution to the next of kin, the rule of the civil law prevails for the purpose of reckoning propinquity of consanguinity. See Sweezy v. Willis, supra I Tlurtin v. Proal, 3 Bradf. 414, 419. See opin- ion of Surrogate. Thus, the accompanying diagrams show 1. By either common or civil law, the grandfather in I is two degrees removed from the intestate. In II, reckoning by the civil law, the intestate and aunt are three degrees apart, reck- oning one degree, ascending, to the mother, two, still ascend- ing to the grandfather, and three, descending to the aunt. B}' the common law, the most remote from the common ancestor is the intestate, who is therefore two degrees only removed from the aunt. The importance of this is great, as under the common law aunt or grandfather are within the same degree of nearness, while under the civil law the aunt is one degree further removed, which is very important when questions of PARTIES. 119 rights to administration, or to a distributive share, are con- cerned. Grandfather Mother Intestate I Grandfather Mother Mother's sister, i. 6., aunt Intestate II The words " next of kin " may be extended by judicial con- struction. Thus \vhen a statute gave a creditor who had neg- lected to present his claims to recover the same of the " next of kin of the deceased to whom any assets shall have been paid or distributed " it was held that it was not used in its strict sense, but included every relation of the deceased to whom any assets had been paid. Merchants' Insurance Co. v. Hinman et al., 15 How. Prac. E. 182. § 10. Persons interested. — In addition to the definition quoted in section 7 of this phrase, there are several adjudications as to who is and who is not a person interested in the sense of the statute. Thus legatees of a deceased legatee of a testator have been held to be " persons interested " in that testator's estate. Fisher \. Banta, 66 N. Y. 468, 481. So also a residu- ary legatee under the will of a nephew of an intestate. Mat- ter of Prout, 52 Hun, 109. A debtor to an estate is not a person interested in it within the meaning of the statute. Es- tate of Berney, 2 McCarthy, 455. One to whom a share in a trust legacy has been assigned has been held to come under subdivision 11. In re Bogers's Estate, 16 N. Y. Supp. 197. Where the Code provides that a " person interested " may " object to an appointment or may apply for an inventory, an account or increased security, an allegation of his interest duly verified, suffices, although his interest is disputed ; unless he has been excluded by a judgment, decree, or other final de- termination, and no appeal therefrom is pending." Code Civ. Proc. § 2514, subd. 11 ; Bovfanti v. Deguerre, 3 Bradf. 429. The sworn statement of interest gives the person making it a 120 surrogates' courts. prima facie standing. The Surrogate may require further* proof of interest if the claim is disputed. But in the case just cited where an administrator with a will annexed, being called upon to account, claimed that the petitioner had as- signed all his rights in the estate, the Surrogate held that if the interest was sworn to, and the denial of such interest raised an issue, such as the validity of the assignment, which was beyond the Surrogate's jurisdiction to try, the Surrogate would not try it, and would entertain the petition on the prima facie standing of the petitioner. See also Matter of Clute, 37 Misc. 710, 714 ; Matter of Randall, 152 K Y. 508. If a question as to a person's interest in a proceeding is raised the Surrogate will determine the disputed point unless it raises an issue he is without jurisdiction to try, such as the validity of an assignment of interest. Ihid. But he may decide whether, as a matter of fact, an assignment was made. Ihid. ; Matter of Geis, 27 Misc. 490. In that event (see Bonfanti v. Deguerre, supra), the application will be rejected if the lack of interest appear on the face of the petition ( Woodruff v. Woodruff, 3 Dem. 505, and Matter of Be Pierris, 79 Hun, 279) ; but not if allowed by the respondent, or party required to be cited, and the verified allegation of petitioner gives him a prima facie standing (Bonfanti v. Deguerre, supra) ; but the words " person interested " may be limited by the con- text in which they are found. Thus in § 2653ffl of the Code relating to an action to determine the " validity " of a will, under which the proofs are limited to the factum of the will, the words used are " any person interested in a will or codicil offered for probate." This has been held not to include any one who does not take under the will, not even a child. Lewis V. CooTt, 150 N. Y. 163 ; Whitney v. Britton, 16 App. Div. 457. But see post, p. 1399. § 11. Creditors. — Creditors are often necessary parties to pro- ceedings and their interest as such is alleged and proved sub- stantially as is that of " persons interested " although the Code distinctly excludes creditors from the definition of " persons interested." Code Civ. Proc. § 2514, subd. 11. But see Raf ferty v. Scott, 4 App. Div. 429 ; Wever v. Marvin, 14 Barb. 376 ; Burwell v. Shaw, 2 Bradf. 322 ; Thompson v. Thompson, 1 Bradf. 24 ; Coiterell v. Brock, 1 Bradf. 148 ; cf. Matter of Stevenson, 77 Hun, 203. See Gove v. Harris, 4 Dem. 293, PARTIES. 121 where Rollins, Sur., says : " I have repeatedly held, in appli- cations by persons claiming to be creditors, for orders directing the filing of inventories or accounts, that a mere allegation that such applicants were ' creditors ' would entitle them to the relief asked, unless that allegation were denied, but that, in the event of such denial, the applicant should be required to set forth, facts which if undisputed would show that his oliiim to be a creditor was well founded. It seems to me that the practice should be the same in a proceeding like the present" (which was an application for subpoena commanding production of will, with a view to propounding same for pro- bate). " The petitioner's claim to be a creditor is here denied. Before his right to further prosecute the proceeding is recog- nized he must make a more definite statement of the nature of his claim by setting forth the facts upon which it is founded," citing Creamer v. Waller^ 2 Dem. 351. Creditors may be petitioners or respondents as the case may be. The statute must control every case. Thus, the statute permits a creditor to be proponent of a will, but nowhere is there provision made for his being a respondent on the probate. That being the case, a creditor cannot come in afterwards and move to revoke probate. Heilman v. Jones, 5 Redf. 398, 400. The word creditor has a wide significance under the Code. Section 2514, subdivision 3, provides : " The word ' debts ' in- cludes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be re- covered in an action ; and the word ' creditor ' includes every person having such a claim or demand." But this means only " having such a claim or demand " against the deceased only. Matter of UnderUll, 117 IST. Y. 471 ; Matter of Eedfield, 71 Hun, 844, 346 ; Duncan v. Guest, 5 Eedf. 440. It does not mean a creditor of a creditor, or a creditor of one of the next of kin, or of a legatee. The Surrogate has no power to inquire into the merits of such a one's claim. Section 2743 provides : Where an account is judicially settled as prescribed in this article, and any part of the estate remains and is ready to be distributed to the creditors, legatees, next of kin, hus- band or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the per- 122 StJEEOGATBS' COUETS. sons so entitled according to their respective rights. If any person who is a necessary party for that purpose has not been cited, or has not appeared, a supplemental citation must be issued as prescribed in section 2727. . . . Where the validity of the debt, claim, or distributive share is admitted, or has been established upon the accounting or other proceed- ing in the surrogate's couit, or other court of competent juris- diction, the deci-ee must determine to whom it is payable, the same to be paid by reason thereof and all other ques- tions concerning the same. § 3'J'43, Code Civil Proc. Chap. 595 of the Laws of 1890, by which the foregoing sec- tion was amended to read as above, also amended section 1822 of the Code by providing for the tiling of a written consent, signed by the claimant against a decedent's estate and the executor or administrator, with the Surrogate, consenting that a disputed claim may be heard and determined by the Surro- gate upon the judicial settlement of the account. {Post, pp. 1467 et seq.) With the exception of claims so stipulated over the necessary implication from section 2743 is or has been held to be {Martine's Estate, 11 Abb. N. C. 50 ; M.cNulty v. Hurd, 72 N. Y. 518, 520 ; Glaucus v. Fogel, 88 N. Y. 434 ; Fiesier v. Sheppard, 92 N. Y. 251 ; Giles v. Be Tallyrand, 1 Dem. 97 ; Lambert v. Craft, 98 N. Y. 342, 347; Matter of Will of Walker, 136 N. Y. 20, 27) that the Surrogate has no authority to determine respective rights of contending parties nor pass on disputed claims. See Oreene v. Day, 1 Dem. 45 (official syllabus). " The rule still prevails, under the Code of Civil Procedure (§ 2743) which must be deemed to have been sub- stantially deduced, by the adjudications, from the former statute (R. S. part 2, chap. 6, tit. 3, § 71) viz : 1st. That the delegation, to Surrogates, of authority to decree, upon the final accounting of an executor or administrator, a distribution to claimants ' according to their respective rights,' gave them no power to ascertain and determine what those rights were, except in cases where they were conceded to exist. 2d. That the imposition, upon the surrogate, of the duty ' to settle and determine all questions concerning any debt, claim, legacy, bequest or distributive share ' empowered him to settle and determine such question, and such only, as were not a matter of dispute between the parties, or in simpler phrase, such PARTIES. 123 questions as there was no question about. The Surrogate's Court being utterly devoid of jurisdiction to adjudicate finally upon the validity of an alleged creditor's disputed claim against a decedent's estate, an allegation by any person, that he is a creditor of the estate is conclusive for the purpose of entitling him, under Code Civ. Proc. § 2731, to become a party to a contest over the correctness of its executor's account." Both creditors, or persons interested in an estate, may, under proper circumstances and although not cited, appear {Martinets Es- tate, 11 Abb. N. C. 50. Thus creditors whose claims are not barred by the statute of limitations may come in and object to claims which are barred, if assets are insufficient to pay both. Matter of Kendrich, 107 N. Y. 104-) and make themselves parties to a given proceeding, such as for example a proceeding for judicial settlement of an executor's account initiated by an executor under section 2728. Nor is this right lost by omitting to present creditor's claim pursuant to executor's notice. Greene V. Day, 1 Dem. 45, and see cases chronologically arranged in decision. But, it seems, they can appear only " upon the hearing." EstaU of Wood, 7 N". Y. St. Eep. 721. § 12. Devisees and legatees. — These terms have strictly distinct meanings. A devisee is one who takes realty, and a legatee one who takes personalty under a will. See Weeks v. Cornwell, 104 N. Y. 825, 343, where Court of Appeals included, by reason of the context and in order to carry out testator's in- tentions, devisees under legatees. They are certainly "inter- ested " in the estate, but are not necessarily to be cited, although they may usually intervene in proceedings in which their inter- ests are involved. They may propound the will for probate. And a legatee named in a will prior in date to that offered for probate may come in and oppose probate of the subsequent will. § 2617, C. C. P. McClellan's Practice in Probate Courts, p. 55, citing Matter of Will of James Malcom, Dayton's Sur. 3d ed. 159. If a devisee or legatee assigns his interest he loses his right to be a party, and while the assignee or receiver of a legatee or devisee is not entitled to stand in his shoes and become a party to the proceedings at the same stages, yet he is amply protected by the provision that he may come in on the distribution, and the Surrogate is empowered to decree payment to him of his share, or he may even be allowed to petition for an accounting. 124 SUREOGATES' COURTS. See Code Civ. Proc. § 2743. It has been held that such an as- signee should be cited to attend the proceedings on accounting and distribution. Estate of Gilligan, 1 Con. 137. In the case cited the petitioner for the accounting was one who had been appointed receiver of the administrator called to account. Held, the receiver was the assignee of the adminis- trator's share in his intestate's (wife's) estate, and as such enti- tled to petition, or to be cited, or to intervene, citing Gibbons V. Shepard, 2 Dem. 247. § 13. Interests of individuals not of a class ; surviving husband or wife. — Persons may be necessary or proper par- ties to proceedings in Surrogates' Courts, not only because they belong to one of the classes just enumerated, such as heirs, next of kin, persons interested, creditors, devisees, or legatees, but by reason of the relations they may sustain to the decedent or to one alreadj^ a party to the proceeding, as a surviving hus- band, a widow, one named as executor, or chosen as adminis- trator, one who becomes surety for an executor, administrator or trustee, a guardian, a posthumous or illegitimate child. A surviving husband or wife require particular mention in this connection. By subdivision 12 of section 2.514, the}"^ are both distinctly excepted from the definition of " next of kin." By subdivision 11, however, they are declared to be persons in- terested.' Under sections 2614-2615 either may petition for probate, and is entitled to citation, being named before heirs or next of kin. A widow, when entitled to be a party, is so de sui juris, and not as heir or next of kin. Wright v. Trustees of M. E. Church, Hoff. Ch. 202; Drake v. PeZ^, 3 Edw. Ch. 251; Slosson v. Lynch, 43 Barb. 147 ; Murdoch v. Ward, 67]Sr. Y. 387 ; Luce v. .Dunham, 69 N. Y. 36. But where the court is satisfied that, though those terras were used the testator intended to include the surviving husband or wife, such intention will be carried into effect. Murdoch v. Ward, 67 K Y. 387 ; Betsinger v. Chapman., 24 Hun, 15, 18, affirmed 88 N. Y. 487 and cases dis- cussed. If there is nothing in the context to show that the widow was intended to be included, the words will be given their pri- mary meaning {Ld. ; Keteltas v. Keteltas, 72 N. Y. 312, 316. See thenumerous cases cited by appellant herein on pp. 313-314. For what is primary meaning see notes to sections 8, 9, and Til- PARTIES. 125 man v. Davis, 95 N. Y. 17, 24-, whereunder see examination of English decisions by Earl, J., on p. 27), for neither term is likely to be used by any testator to designate persons who were not related to him by blood. Id. In the case of statutes also the intention of the legislature is the thing to be discovered, and, once known, words of descrip- tion may be extended accordingly to include subjects to which they are not directly applicable. Betsinger v. Chapman, 88 N. Y. 488, 494, where object of Eevised Statutes (p. 2, ch. 6, title 5, §§ 9-10) being to give a remedy by action against ex- ecutors and administrators to " any legatee or any of the next of kin entitled to share in the distribution of the estate," held, to include widow as a distributee under the statute of distribu- tions. The rights of a surviving husband or wife and their status as parties may be materially affected by the fact of a divorce formerly granted to or from the decedent. The Code provides (§ 1759, subdivision 3, as amended by chap. 891, Laws of 1895), "If when final judgment is rendered, dissolving the marriage, the plaintiff — which under this section is the wife — is the owner of any real property ; or has, in her possession, or under her control, any personal property, or thing in action, which was left with her by the defendant, or acquired by her own industry, or given to her by bequest or otherwise ; or if she is or may thereafter become entitled to any property by the decease of a relative intestate, the defendant shall not have any interest therein, absolute or contingen t, hefore or after her death. 4. Where final judgment is rendered dissolving the marriage, the plaintiff's inchoate right of dower, in any real property, of which the defendant then is or was theretofore seized, is not affected by the judgment." And per contra section 1760 (action brought by husband), provides : " A judgment dissolving the marriage does not im- pair or otherwise affect, the plaintiff's rights and interests, in and to any real or personal property which the defendant owns or possesses, when the judgment is rendered. 3. " When judgment is rendered dissolving the marriage, the defendant (i. e. the wife) is not entitled to dower in any of the plainiiff's real property, or to a distributive share in his real property." The rights of a surviving husband or wife who was divorced may also be affected by the guilt or innocence of the survivor. Thus a woman divorced from decedent for her 126 SUBROGATES' COUKTS. adultery is, under the provisions of the Code just quoted, not entitled to dower nor to a distributive share. If she had ob- tained the divorce, however, from decedent for his guilt, her dower rights are not divested from real property owned by him at or prior to the judgment of divorce. But the divorce, whether in her favor, or against her, disen- titles her to administer upon his estate, for she is not his widow in the eyes of the law, as well as to any distributive share in his personal estate, since her rights quoad hoc were de- termined by the judgment which has this very matter in view allowing and fixing her alimony. Matter of Estate of Ensign, 103 N. Y. 284; Kade\. Zauher, ,16 Abb. Prao. K S. 288. Although blameless, no dower attaches in her favor to lands acquired by him after the divorce. Her coverture, as to him, ended with the judgment. Under the provisions of law it is possible that he may marry again, in which case his last wife if she survive him is his " widow." Any other doctrine would tend to produce confusion, and is shown to be fallacious in Matter of Estate of Ensign, 103 N. Y. 284, where Finch, J., grimly asks, admitting the possibility of a man's legally marr^^- ing in another State, or even in this by consent of the court : " Suppose that, with unusual activity, he should leave four (such ' widows ') how would each one get one third of the per- sonalty?" § 14. Executors or administrators, whether one or several, are looked upon as one, so far as being parties is concerned. Code Civ. Proc. § 1817. " In an action or special proceeding against two or more executors and administrators, representing the same decedent, all are considered as one person." But this relates only to such as have received letters testamentary. One to whom letters have not been issued is not a necessary party to an action or special proceeding, in favor of or against the executors, in their representative capacity. Code Civ. Proc. § 1818 ; Moore v. Millett, 2 Hilt. 522. But see Hunter v. Hunter, 19 Barb. 631. And this means one to whom letters have not been issued in this State. Thus if there are two co- executors of a non-resident testator in another State, and only one takes out letters in this State, such one is the only one nec- essary as a party to proceedings in this State. Lawrence v. Townsend 88 N. Y. 24, 32. When executors are necessary parties all must join or be joined. Matter of Slingerlandy 36 PARTIES. 127 Han, 575, 577; Scranton as Ex'r v. Farmers'' <& Mechanics'' Bank, etc., 24 IST.Y. 424. § 15. Intervening.— Upon the probate of a will, any person, although not cited, who is named as a devisee or legatee in the will, or as executor, trustee, devisee or legatee in any other paper purporting to be a will of the decedent or who is other- wise interested in sustaining or defeating the will, may appear, and, at his election support or oppose the application. A per- son so appearing becomes a party to the special proceeding. Code Civ. Proc. § 2617. SeeZqferty v. Lafferty, 5 Kedf. 326, 329, citing Booth v. Kitchen, 7 Hun, 255, 259, 260, 264 ; Walsh V. Ryan, 1 Bradf. 433; Marvin v. Marvin, 11 Abb. IST. S. 97 ; Children's Aid Society v. Loveridge, 70 N. Y. 387, 391 ; Terhune V. BrooJefield, 1 Eedf. 220. This rule applies in cases other than probates. In any case the party, having the necessary interest, must petition the Surrogate for leave to come in, and in every proper case such leave will be given. No motion, or anj"^ other steps, can be taken by such person, in the proceeding until after he becomes a party. Foster v. Foster, 7 Paige, 48, 52 ; Lafferty v. Lafferty, 5 Kedf. 326, 329. It is no answer to his application that as to him the Statute of Limitations has run if the court has jurisdiction of the rem. Matter of Ibert, 48 App. Div. 510 ; Matter of Bingham, 127 IST. Y. 296. If any one already a party to a proceeding in a Surrogate's Court dies, his representative is entitled to come in and protect his interest in his decedent's place and stead. Van, Alcn v. Hewins, 5 Hun, 44. A proceeding for probate of a will, being a proceeding quasi in rem, does not abate by the death of a party, whether proponent or contestant or even of all the parties. Lafferty v. Lafferty, 5 Redf. 326. The proceeding lives, and must continue unabated, until the will be either admitted to or refused probate. Van Alen v. Hewins, 5 Hun, 44 ; Brick v. Brick, 66 N. Y. 144. The right of a representative of a party to intervene upon such party's decease is thus an essential right. Merritt v. Jaclcson, 2 Dem. 214, Rollins, S. : " It seems eminently proper, even if it is not essential, that one who is the acknowledged representa- tive of a party deceased, and who asks as such to intervene, should be allowed to do so." Whatever the proceeding, the party petitioning for leave to intervene must allege the facts constituting his interest or title to be brought in ; such as, that he is a "person interested in the estate" (see § 10 and cases 128 surrogates' courts. cited) or a creditor who desires, for example, to come in upon an accounting; or that he "has in tiie subject-matter of tlie decree or order, a right or interest, which is directly affected thereby (thus counsel for contestant of a will to whom the Surrogate had made an allowance were held to be properly par- ties to an appeal taken by the executrix. Peck v. Peoli\ 23 Hun, 312. See also Wilcox v. Smith, 26 Barb. 316 ; Matter of Thompson, 11 Paige, 453 ; Jauncey v. Rutherfo^'d, 9 Paige, 273) and which appears on the face of the papers presented in the Surrogate's Court, or has become manifest in the course of the proceedings " in case he desires to become a party upon an appeal. Code Civ. Proc. § 2573. §16. Mode of intervention The ordinary manner of inter- vention is by order of the Surrogate upon the applicant's peti- tion, or upon his appearance in open court, on the return day, and filing a sworn claim of interest. The evidence on the ques- tion of interest is taken pari passu with that relating to the ■will, in case of probate, and is not deemed a separate proceed- ing. Norton v. Lawrence, 1 Eedf. 473, 475. But under Rule 4 of the court in the county of New York, the Surrogate first hears and passes upon the question of the status of the contest- ant, if it has been drawn in question, "unless for the conven- ience of the parties or the court, the Surrogate shall order otherwise." A claimant, not entitled to be cited as heir-at-law or next of kin, may become a party to an accounting proceed- ing by presenting his claim and filing a consent. Matter of Ingraham, 35 Misc. 577. In case a person becomes a necessary party on appeal undet § 2573, supra he may be brought in by an order of the Appel- late Court, made after the appeal is taken. Or the Appellate Court may prescribe the mode of bringing him in, as by publi- cation, by personal service, " or otherwise." And it has been held that when the appeal is pending the Surrogate's Court has no longer power to make an order allow- ing a party to intervene but that he may only apply to the Appellate Court. Matter of Dtmn, 1 Dera. 294, citing the fol- lowing : Foster v. Foster, 7 Paige, 48 ; Ma^'vin v. Marvin, 11 Abb. Pr. 97 ; Matter of Wood, 5 Dem. 345. But a creditor of, or person interested in the estate or fund affected by any decree or order, who was not a party to the special proceeding, but who was entitled by law to be heard therein upon his applica- PARTIES. 129 tion, or who has acquired since the decree or order was made a right or interest which would have entitled him to be heard, if it had been previously acquired, may intervene and appeal. The facts which entitle such a person to appeal must be shown by an affidavit, which must be filed, and a copy thereof served with the notice of appeal. Code Civ. Proc. § 2569. See Fos- ter V. Foster, 1 Paige, 48 ; Marvin v. Marvin, 11 Abb. N. S. 97 ; Delaplaine v. Lawrence, 10 Paige, 602. The following precedents used upon a proceeding for the pro- bate of a will, sufficiently indicate the forms to be followed where a party desires to intervene : Petition of an heir-at-law for leave to inter- vene. Note. Under the amendment to the Code, section 2732, subd. 12, to wit : that " repre- 9 Surrogate's Coui't, County of Title. I To the Surrogate's Court of the county of The petition of respectfully shows : I. That he is (e. g. an infant over 14 years of age, and was years of age on the day of 18 ), that he resides in (with his ). II. On information and belief, that on the day of one departed this life leaving his last will and testament, which on the day of was duly filed in the oflfice of the Surrogate of the county of for pro- bate; and that proceedings for the probate of said will are now pending before said Surrogate ; and that said will is a will of real and personal property (or of real, or of personal property). III. That your petitioner is one of the heirs at law of said decedent {or one of the next of kin, or state relationship in fi(U if necessary by showing kinship through common ancestor in case of collaterals, or by specifying that the decedent was an uncle, aunt, or brother or sister, or what- ever the relationship may have been.) Note. IV. Your petitioner further says, that he is interested in the said will {state briefly the facts showing whether the petitioner is interested in . 130 SURROGATES COURTS. sentation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate (chap. 319, of the laws of 1898), which went into effect on the 1st of Sep- tember, 1898, it is not necessary to discriminate be- tween wills of real and personal prop- erty for the pur- pose of fixing the applicant's right to intervene, but it should be done with deflniteness and certainty in order to fix the status of the peti- tioner for the ben- efit of the Surro- gate. sustaining or defeatiny the will, and if the peti- tioner desires to defeat the will, state briefly the facts on which the petitioner intends to rely. For example, as follows : That your petitioner is in- formed and verily believes that said will was procured by undue influence, or, that at the time it was made, the petitioner was without testa- mentary capacity to make such a will ; and your petitioner is advised and verily believes that said wiU is not in fact the last will and testament of said testator, but that probate should be denied the same ; and he is further advised that if pro- bate is denied the same, your petitioner will be entitled to share in the real or in the personal, or in the real and personal estate of said decedent [or if petitioner claims hy representation say, entitled to that share in the realty, or personalty, or in the real and personal estate of said dece- dent, which his mother, or father, would have been entitled to if living, as one of the heirs, or next of kin of said alleged testator]). Wherefore, your petitioner prays that an or- der of this court may be made adjudging your petitioner to be a necessary party to the above entitled proceeding and directing a supplemental citation to issue directed to him and to be served upon him according to law. (Signature.) (Verification.) Order alloirliig party to inter- vene. Note. Note. These precedents are only necessary where the propo- nent's attorney puts in issue the Present : Hon. Surrogate's Court , Caption. Surrogate. Title. On reading and filing the petition of (if necessary say an infant over the age of 14 years or where infant is undfer the age of 14 years and petition is made by parent or general guardian or next friend state the fact), verified the day of 18 from which it ap- PARTIES. 131 right of the peti- tioner to be macle a party. If this right to intervene is not put in issue, the supplemental citation may issue on consent, with- out the formality of an application to the court. Note. Where the petitioner who is permitted to in- tervene is an in- fant he should petition for the appointment of the special guard- i a n directly upon the order permitting him to intervene. If no application is made by him or on his behalf, the Surrogate will ap- point a special guardian upon his own motion. pears that the petitioner, {if necessary an infant as aforesaid) is interested in the probate of the will of deceased, proceedings for which are now pending in this court, and that the said petitioner desires to intervene in such proceedings that his interests therein may be protected. Now after hearing counsel for said petitioner and for the proponent respectively, and on mo- tion of of counsel for the petitioner. It is Ordered that the said (an infant over or under the age of 14 years) be and he hereby is adjudged to be a necessary party to the above entitled proceeding and should be cited therein ; and it is Further Ordered that a supplemental citation issue forthwith directed to the said to be served upon him according to law. Note. i^ 17. Order not necessary.— It is not necessary but it is better practice that an order be entered on the intervenor's petition, granting his request. The same result is secured by issuing a citation to him and proof of service of such citation upon him is sufficient proof of his regular standing as a party to the proceeding. For the Surrogate, of his own motion, if he discover that any one is a necessary party'to a pending proceeding, will bring him in, and if such a party be a minor, 132 SUEEOGATBS' COUBTS. will appoint a special guardian. It is quite immaterial how- he ascertains that such a one is a necessary party. The affi- davit of an attorney is quite sufficient. Bussell v. Eartt, 87 N. Y. 18, 23. So, in a case before the Surrogate of New York, the omission of a minor as a party to the proceeding was dis- covered by the Surrogate himself, after twelve years of litiga- tion and a special guardian appointed. Saltus's Estate, 1 Tucker, 230. ' § 18. Effect of death of a party. — At common law when a sole party to a legal action died before trial, the action abated, and there was no way to revive or continue it. Matter of Palmer, 115 N. Y. 493-495 ; Evans v. Cleveland, 72 N. Y. 486. The right to revive and continue such actions in the names of the administrators or executors of a deceased party always depends upon statutes. Matter of Camp, 81 Hun, 387, 388. Prior to 1891, the provisions of the Code upon this subject re- lated only to actions. They were then amended so as to apply also to special proceedings, but not in Surrogates' Courts, except as expressly made applicable. Sections 765 and 785, are such sections made applicable by § 3347, subd. 6. They provide, 1. That no judgment may be entered against a party who dies before a verdict, report, or decision is actually rendered against him. 2. Where a party entitled to appeal from a judgment or order, or to move to set aside a final judgment for error in fact, dies either before or after this chapter takes effect, and before the expiration of the time within which the appeal may be taken, or the motion is to be made, by the heir, devisee, or personal representative of the decedent, at any time within four months after his death. This indicates that certain special proceedings in Surrogates' Courts abate on the death of a party, and that others may not. And, first, if the proceeding be in rem the jurisdiction of the Surrogate, once acquired, is not divested by the death of one of the parties, or even of all the parties. Lafferty v. Lafferty, 5 Redf. 326. Thus a probate proceeding, which is of this description, or, speaking exactly, a proceeding quasi in rem, is one in which the Surrogate's function is not to determine issues or rights between parties, and if the will is contested the issues then raised are deemed incidental to the general inquiry as to its probate, but whether or not the instrument propounded as the last will and testa- ment of the decedent is a valid will, and is in very fact his last PARTIES. 133 will. This inquiry is not affected by the death of a party to the proceeding and does not abate by reason thereof. Brick V. Brick, 66 N. Y. 144. The interests of the deceased party can if they survive, be represented by his legal representatives, whose application to be made parties should be granted. Van Alen V. Hewins, 5 Hun, 44, 4Y, citing BricMs Estate, 15 Abb. Pr. 12 ; Campbell v. Thatcher, 54 Barb. 382 ; Campbell v. Logan, 2 Bradf . 90 ; Pew v. Hastings, 1 Barb. Ch. 452 ; Kerr V. Kerr, 41 N. Y. 272-277, and see Merrick v. Jackson, 2 Dem. 214 ; Lafferty v. Lafferty, 5 Redf. 326. If no application is so made by them and the Surrogate proceeds with the probate, his decree is binding on all the surviving parties to the pro- ceeding. Brick V. Brick, 66 N. Y. 144. So, also, in a pro- ceeding in rem, such as a probate proceeding, the relation in which the party dying stands to the proceeding does not affect this question of abatement. Thus where a proponent died it was held the proceeding did not abate, but could be re- vived and continued {Matter of Govers, 5 Dem. 40) ; and simi- larly in a case where a contestant died. Van Alen v. Hewins, 5 Hun, 44. "Where a proponent dies, who is also a beneficiary under the will, his executor or administrator should make an ex parte application to be made a party to the original proceed- ing, and when made a party he should then apply, on notice, for a revival in his name as proponent. It seems that this is better practice than that heirs or next of kin of the testator, other than the original proponent, if any there be, should apply to be substituted as proponents. In re Covers, 5 Dem. 40. The theory being that the proponent's executor is under the duty of seeking to reduce to possession that which his testator is enti- tled to under the will he had propounded and, to that end, to proceed with its probate. If, however, the proponent have no beneficial interest under the will, and die, his executor is not bound to come in. So if one is named an executor in a will and in that capacity offers it for probate, and dies, pending the proceeding his estate can have no possible interest in intervening. In such a case any other person who would have been originally qualified to offer the will may come in and apply for a revival of the proceeding in his own name as proponent ; of course first intervening if he be not already a party. 134 SUEEOGATES' COUBTS. Such an application should not be ex parte but upon notice to all other parties to the proceeding. § ly. Same, continued. — But if the proceeding be in per- sonam then the death of a party may materially change the situation. Thus a proceeding to compel the judicial settle- ment of an executor's account cannot survive the executor's death. Boerum v. Betts, 1 Dem. 471, 4T4, citing Leavy v. Gardner, 63 JST. Y. 6^4 ; Matter of Grove, 64 Barb. 526 ; Bak- ing V. Demming, 6 Paige, 95 ; Montross v. Wheeler, 4 Lans. 99 ; Farnsworth v. Oliphant, 19 Barb. 30. And where an ad- ministrator himself instituted proceedings to settle his own account and died pending the Surrogate's decision it was held the proceeding abated and could not be revived. Herlert v. Stevenson, 3 Dem. 236. But this is without prejudice to the right given by the amendments of 1884 and 1891 to the Code (see § 2606) under which an executor or administrator of a de- ceased executor, administrator, guardian, or testamentary trus- tee, may be compelled to account for property for which his decedent could have been compelled to account (see account- ings) which is a new remedy, pursued in an independent pro- ceeding. It is also important that the distinction be kept in mind which the Code now draws between special proceedings in general and special proceedings in Surrogates' Courts. Thus when in section 755 it was enacted that " a special proceeding does not abate by any event if the right to the relief sought in such special proceeding survives or continues," etc., it must be re- membered that in section 3347 in subdivision 6 it is provided that that section applies to proceedings only in the Supreme Court, the city court of the city of New York, or a county court. Mat- ter of Camp, 81 Hun, 387, 388. See all of title IV, chap. 8, §§ 755-766, also § 785 in connection with subd. 6 of § 3347. The fact that the sections 755, etc., were amended in 1891 does not make them applicable to aU special proceedings. They are still subject to the limitations of section 3347. But if the party seek- ing to compel the executor or administrator to acc'ount dies while the proceeding is pending, the person succeeding to his inter- est may on proof of his interest intervene and continue the proceeding {Matter of Fortune, 14 Abb. N. C. 415) whether he be his personal representative or merely his assignee. Section 766 of the Code provides that where .... a spe- PARTIES. 135 cial proceeding is authorized or directed by law, to be brought by or in the name of a public officer, or by a receiver or other trustee, appointed by virtue of a statute, his death or removal does not abate it, but the same may be continued by his suc- cessor, etc. By section 3347 of the Code, subdivision 6, it appears that section 766 of the Code does not apply to Surrogates' Courts. But in the case of an executor or administrator or other per- son directed by a decree in proceedings for the sale of a dece- dent's real estate to sell such real estate, it is provided by section 2770 of the Code that, " The death, removal, or disqualification before the complete execution of a decree of aU the executors, or administrators who have been directed to execute it, or of a freeholder ap- pointed for the purpose, does not suspend or affect the execu- tion thereof ; but the successor of the person who has died, been removed, or become disqualified, must proceed to complete all unfinished matters as his predecessor might have completed the same. ..." See also Matter of Camp, 81 Hun, 387. CHAPTER III. HEARINGS AND TRIALS. § 1. Practice similar to that in all courts of record. — Practice in. Surrogate's Courts conforms substantiall}'^ to that in other courts of record. Goulburn v. Sayre, 2 Eedf. 310. Of course this general statement is subject to the limitation that the whole jurisdiction of the court is statutory. The general rule as to practice in Surrogates' Courts is defined by § 11 of 2481 {supra) which provides, in effect, that where ju- risdiction is given in any matter to the Surrogate's Court and the practice is not prescribed it shall proceed, " According to the course and practice of a court having by common law ju- risdiction of such matters." Consequently, Surrogates' Courts have been accustomed to allow the resort to the ordinary ma- chinery of practice. So, for example, the right to shorten the time of notice of a motion by an order to show cause has been very generally exercised. See Filley's Estate, 20 N. Y. Supp. 427 ; Cluff V. Tower, 3 Dem. 253, where Judge Rollins held (under subd. 6 of § 2481) that a proceeding to open, vacate, etc., a decree or order of his court (the power to do which by this section is directed to be exercised only in like case and in the same manner as a court of record and of general jurisdic- tion would exercise the same power) might be begun either by a notice of motion or by an order to show cause, but while, generally speaking, the rule is as above stated, yet, where prac- tice in the other courts of record in special cases or in partic- ular respects is changed, it will not be deemed to extend to Surrogates' Courts unless clearly made applicable thereto, or unless it clearly comes under one of the subdivisions of section 2481 as aforesaid. Thus, w^here the former provisions of the Code (§ 1022) \^qvq amended by omitting the requirement that a referee in making his decision must state separately the facts found and the conclusions of law, and, as amended, provided that the court or referee upon the trial of issues of fact may file a decision stating concisely the grounds upon which the (136) HEAKINGS AND TRIALS. 137 issues have been decided and direct the judgment to be entered thereon, it was held first, that this auiendment did not refer explicitly to Surrogates' Courts and was not to be applicable to references in such court. Havemeyer's Estate, 35 N. Y. Supp. 480. This was so held in spite of § 2546 of the Code, which makes applicable to references in the Surrogate's Court all the provi- sions of the Code applicable to references in the Supreme Court, " so far as that can be applied in substance, without regard to the form of proceeding." This, however, was in view of sec- tion 2545 which remained unamended, and under which the Surrogate, upon the trial by him of an issue of fact, is required to file in his office his decision in writing, which must state sepa- rately the facts found and the conclusions of law. Surrogate Fitzgerald held, that it would be highly improbable to suppose that the legislature intended to create the anomalous condition of relieving referees appointed by the Surrogate's Court from making the findings which are exacted from the court itself. But, while we believe he was technically right, in a late case {Matter of Woodioard, 69 App. Div. 286, 290 [2d Dept.]), the contrary decision of the Surrogate of Kings County was af- firmed, holding that section 1022 was applicable (in references in special proceedings under section 2546), as its provisions could be " applied in substance." The Appellate Court went further and held that when a referee files a short decision, the Surrogate himself is relieved of the duty imposed by section 2545 of stating separately the facts found and the conclusions of law. This simplifies the practice and is a welcome step in the direction of assimilation of practice in our courts of record, which we trust will not be disturbed. See § 5 below. § 2. Same. — Similarly the rules which are applicable in other courts of record in the conduct of trials will be enforced in Surrogates' Courts. The examination and cross-examination of witnesses, the compelling of the attendance of witnesses, the privilege to which witnesses are entitled, the admissibility of the evidence adduced and the competency of the witnesses ex- amined are to be regulated by the generic rules. We have already seen that among the powers of the Surrogates is the poAver to issue subpoenas or subpoenas duces tecum, and to pun- ish for contempt in like case and in like manner as any court of 138 STJEROGATES' COUilTS. record. All statutory provisions as to proceedings in Surro- gates' Courts must of course be carefully observed, but amend- ments of the Code prescribing new methods of practice or procedure can have no exfostfaoto operation (see subd. 11 of § 3347, excluding all proceedings pending in Surrogates' Courts upon the first day of September, 1880, when theact went into etfect), that is to say (Mills v. Hoffman, 92 N. Y. 182), if the amendments relate to a matter of substantial right they ought to be construed as inapplicable to proceedings pending before they went into effect ; but as regards mere incidental details of procedure they may properly be deemed operative as to all motions or applications made in proceedings after the amend- ment goes into operation. This would seem to be the rule deducible from the decisions. § 3. Attorneys — In regard to parties the Surrogate's power has already been discussed. Over attorneys he, undoubtedly, has powers similar to those of any court of record, such as the power to direct substitution of one attorney for another (Chat- field V. Hewlett, 2 Dem. 191) ; and as incidental thereto to de- termine the terms and conditions upon which the substitution should be made. Surrogate Coffin in 1883 (Hoes v. Halsey, 2 Dem. 577), doubted the power of the Surrogate to prescribe the terms on which a change of attorneys could be effected. The better rule, however, had been laid down by Surrogate Eollins the year before (Ghatfield v. Hewlett, supra), in a well reasoned opinion basing the power claimed upon the Code of Civil Procedure generally and in particular upon section 17 which authorized the general term justices of the Supreme Court with certain chief justices of the Superior City Courts to establish rules of practice to be binding upon all courts of record. The learned Surrogate pointed out that it was doubt- ful whether the Surrogate could lawfully have exercised such power, prior to the Code, citing Coates v. Cheever, 1 Cow. 463, 475 ; Cullen v. Miller, 9 N. Y. Leg. Obs. 62, 66 ; Petition of Hunt, 1 Tuck. 55 ; Matter of Sommerville, id. 76. But among the rules of practice commonly known as the " Court Rules" was the following : Rule 10. " An attorney may be changed by consent, or upon application of the client upon cause shown, and upon such terms as shall be just, by order of the court or a judge thereof, and not otherwise." By one of the statutes amending the Code, making the Surrogates' Courts courts of HEARINGS AND TRIALS. 139 record, the procedure in such courts was made subject to these rules. Laws, 1887, chapter 416. Section 17 of the Code above referred to went into operation on September 1, 1877. There can be no question therefore that since that time Surrogates have had authority to direct substitution of attorneys in pro- ceedings pending before them upon such terms as to compen- sation of the retiring attorney as seem reasonable and just. See also Matter of Fernhacher, 18 Abb. N. C. 1 ; Eisner v. Avery, 2 Dem. 466. § 3a. Lien of attorneys — How enforced. — Since a court of record has undoubtedly the power to determine the amount of an attorney's lien for services by direct inquiry or by reference, the Surrogate may do the same {Barber v. Case, 12 How. Pr. 351 ; Q-illespie v. Mulholland, Daly, Ch. J., 12 Misc. 40, 43, dist'g McKiblel v. Wafis, 27 K T. Supp. 723); and if the mat- ter is referred by the Surrogate the reference will be subject to the usual rules governing references in Surrogates' Courts. Section 66 of the Code was amended (L. 1899, chap. 61) just after decision in Matter of Lex' n Am., No. i,157K Y. 678, aff'g 30 App. Div. 602, by including special proceedings and protecting the lien of attorneys therein upon the client's cause of action, claim, or counterclaim. The section now reads : § 66. [Am'd, 1879, 1899.] Compensation of attorney or counsellor. — The compensation of an at- torney or counsellor for liis services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or special proceeding, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action, claim or counterclaim, which attaches to a verdict, report, decision, judgment or final order in his client's favor, and the proceeds thereof In whosesoever hands they may come ; and the lien cannot be affected by any settlement be- tween the parties before or after judgment or final order. The court upon the petition of the client or attorney may deter- mine and enforce the lien. Accordingly, it is now held that the power of the Surrogate's Court to protect the lien of an attorney has been assimilated to that of the Supreme Court and other courts of record. Matter 140 SURROGATKS' COXJKTS. of Regan, 167 N. Y. 338, 343, rev'g 58 App. Div. 1, and afPg 29 Misc. 527. (See opinion of Surrogate.) The decision in Matter of Krakauer, 33 Misc. 674, is not in conflict. It was there held only that there was no proceeding pending in which this incidental power of protection could be exercised. ISTo order for substitution of attorneys can be made, and the lien of the first attorneys protected when no proceed- ing is pending to which the order can relate. Ibid., citing Mat- Ut of Hoyt, 5 Dem. 432, 445 ; Estate of Aaron, 7 N. Y. Supp. 735. So, in the Regan case the power of the Surrogate was up- held to vacate the satisfaction of a decree to let in attorneys who had a liquidated claim, which attached by way of lien to the decree in their client's favor under section 66. The question was not squarel3' before the court whether the case would be different if, first, the claim was unliquidated, or second, the client was able to respond pecuniarily apart from the proceeds of the attorney's industry. The Surrogate has power, pending his determination of the merits of the question of substitution or of lien to order the attorney to deposit the monej's of the estate or client in a trust company to abide his decision. Oraindi's Estate, 9 N. Y. Supp. 873 ; Matter of Regan, 29 Misc. 527, 531 ; Matter of Rowland, 55 App. Div. 66. § 4. Miscellaneous provisions as to trials in Surrogates' Courts. — Section 2545 of the Code was a new provision pre- scribing the practice in Surrogates' Courts, with regard to ex- ceptions on a trial in such court. The section is as follows : § 3545. Exceptions upon a trial. An exception may be taken to a ruling by a surrogate, upon the trial by him of an issue of fact, including a finding, or a refusal to find, upon a question of fact, in a case where such an exception may be taken to a ruling of the court upon a trial, without a jury, of an issue of fact, as prescribed in article third of title first of chapter tenth of this act. The provisions of that article, relating to the manner and effect of taking such an exception, and the settlement of a case containing the exceptions, apply to such a trial before a sur- rogate; for which purpose, the decree is regarded as a judg- ment, and notice of an exception may be filed in the surro- gate's office. Upon such a trial, the surrogate must file in HEAEINGS AND TRIALS. 141 his oflace his decision in writing, which must state, separately, the facts found and the conclusions of law. Either party may, upon the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law ; and an exception may be taken to such a finding or ruling, or to a refusal to find or rule accordingly. An appeal from a decree of an order of a surrogate's court brings up for review, by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appel- lant, as prescribed in this section. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. § 5. The practice hereunder. — The foregoing section has been very largely discussed in the courts. In the first place it is to be observed that the particular procedure prescribed by it for Surrogates' Courts is unaffected by amendments to the Code covering the practice in this regard in other courts of record, unless the legislative intent is clear. Thus, section 1022 of the Code was recently amended, so as to give a court of record or a referee appointed by such court a right to concisely state the grounds upon vrhich the issues have been decided in lieu of a separate statement of the facts found and the conclu- sions of law. While the court has still power to make such separate statement {Halraih v. Abbott, 85 Hun, 181), it may not be required to do so ; as section 1023, formerly prescribing the mode in which the parties could require the court or a referee to determine such findings of fact or conclusions of law, has been repealed. Chapter 688, Laws, 1894. But section 1022 being general in its application does not affect Surrogates' Courts where the particular provisions of section 2545 are ex- clusively operative. Matter of Havemeyer, 35 N. Y. Supp. 480. But if the Surrogate appoint a referee to hear and determine, under section 2546, it is held {Matter of Woodward, 69 App. Div. 287, overruling in effect Matter of Havemeyer), that such referee has the power of a Supreme Court referee under sec- tion 1022 and may make a "short decision." And hence, when his report is filed, the Surrogate under his power to con- firm or modify may do so without being in such case required under section 2545 to separately state the facts found and the conclusions of law. See also Matter of Yetter, 44 App. Div. 142 surrogates' courts. 404. It is to be observed, in tbe next place, that section 2545 refers to section 992 et seq., with regard to the cases in which exceptions may be taken as upon trials before other courts of record without a jury of an issue of fact ; but the first two paragraphs of the section are limited by the subsequent para- graphs which are specific and limit the practice in the Surro- gate's Court. Thus, the findings of fact must be requested upon the settlement of the case and at no other stage of the proceedings.- Hartwell v. McMaster, 4 Kedf. 389 ; Matter of Boyt, 5 Dem. 432 ; Matter of Bodge, 105 N. Y. 585, aff'g 40 Hun, 443 ; Matter of Prout, 11 N. Y. Supp. 160. And a Sur- rogate cannot be required to determine particular questions before rendering his decision. Tilby v. Tilby, 3 Dem. 258, citing Hartwell v. McMaster, 4 Kedf. 389 ; Matter of Chauncey, 32 Hun, 430. It is to be noted further that this section regu- lates specifically the method by which a review of errors on a trial before a Surrogate may be had by the Appellate Court. This method is exclusive. See post, chapter VI on Appeals. In this connection the Court of Appeals (Ruger, Ch. J., in Matter of Hawley, 100 N. Y. 206, 210) uses the following lan- guage : " The provision of the Code of Civil Procedure regu- lating the method by which a review of the errors occurring upon a trial before a Surrogate can be secured .... also fur- nishes the strongest implications that such errors are not re- mediable by any other proceeding." § 6. When section 998 is applicable. — Since section 2545 prescribes that the decree of the Surrogate is to be regarded as a judgment and makes applicable to trials in Surrogates' Courts those provisions of chapter 10, title 1, article 3 (sec- tions 992 et seq.) which relate to the manner and effect of tak- ing exceptions to rulings of the Surrogate both upon the trial of an issue of fact and in finding or refusing to find a question of fact and also relating to the settlement of a case containing the exceptions, the practice may be assumed to be substantially assimilated to the proceedings on and after the trial of an ac- tion by the Supreme Court. Waldo v. Waldo, 32 Hun, 251 ; Hexolett v. Elmer, 103 N. Y. 156. This is manifest, not only by implication from the provision of section 2545, but also from the wording of sections 2575 and 2576 (see chapter VI on Ap- peals, jpost), which provides for a case on appeal to be made and settled by the Surrogate in the manner prescribed by law, HEARINGS AND TRIALS. 143 for the making and settling of a case upon an appeal in an ac- tion. See p. 238, post. It must be borne in mind, in view of what has already been said, that these provisions of sec- tion 2545, and those incidental thereto which are about to be discussed, being specific, do not apply to any other trial except a trial by the Surrogate of an issue of fact. Where the decree appealed from is not made upon the trial by a Surrogate of such an issue, it is not within the practice prescribed by sec- tion 2545 or 2576. For example : Where the decree of a Sur- rogate charges a trustee with interest and denies l\im commis- sions upon the settlement of his account and the trustee appeals, there is no provision in this section of the Code, for the making or settlement of a case, consequently, it has been held in such a case that section 998 of the Code controls. Matter of Jack- son, 32 Hun, 200. Section 998 is as follows : § 998. When appeals, etc., may he heard loithout a case. It is not necessary to make a case, for the purpose of moving for a new trial, upon the minutes of the judge, who presided at a trial by a jury ; or upon an allegation of irreg- ularity, or surprise ; or where a party intends to appeal from a judgment entered upon a referee's report, or a decision of the court upon a trial, without a jury, and to rely only upon exceptions, taken as prescribed in section 994 of this act. § 7. Surrogate's duty as to findings. — When the practice was yet undefined by judicial decisions the case arose of an ap- peal from a Surrogate's decree confirming a referee's report. In view of the fact that the referee had already separately stated his findings of fact and of law, the Surrogate refused to make additional findings and on appeal. to the Fourth Depart- ment, General Term, his decree was reversed. {Matter of Keef, 43 Hun, 98.) This is overruled in Matter of Tetter, 44 App. Div. 404, 408, where the court approved the contrary rule laid down in Mat- ter of Niles, 47 Hun, 348, namely, that under section 2546, where a reference has been ordered, it is not necessary where exceptions taken to the report of the referee are overruled by the Surrogate, to file exceptions again to the Surrogate's de- cree in order to entitle the aggrieved party to review the error complained of on an appeal from that decree. So, in Matter of Bettman, 65 App. Div. 229, it was similarly held, the court 144 SUKEOGATES' COTIBTS. saying : " "When the Surrogate confirmed the report, be adopted the findings of fact and conclusions of law reported by the ref- eree as his own, and in all respects complied with the law. The same rule holds where the Surrogate sustains exceptions, on the coming in of the report, to the referee's conclusions of law. Matter of McAleenan, 53 App. Div. 193, 198. But when the Surrogate determines a proceeding after the trial ly him of an issue of fact, under section 2545, he is re- quired to " file in his office his decision in writing, which must state, separ9,tely, the facts found and the conclusions of law." Matter of Widmayer, 52 App. Div. 301. And if he does not do so the case may be remitted to him for that purpose. Mat- ter of Daymon, 47 App. Div. 315, citing Hall v. Beston, 13 App. Div. 116 ; Shaffer v. Martin, 20 App. Div. 304. See also Matter of Sprague, 125 N. Y. 732 ; Hewlett v. Elmer, 103 N. Y. 156, 164 ; Matter of Kellogg, 104 K. Y. 648 ; Angevine v. Jach- son, 103 ]Sr. Y. 470 ; Burger v. Burger,lll N. Y. 523 ; Matter of Bradway, 74 Hun, 630 ; Matter of Marsh, 45 Hun, 108 ; In re Falls' Estate, 10 N. Y. Supp. 41 ; Matter of Otis, 6 IST. Y. St. Kep. 631 ; Matter of Peck, 39 N. Y. St. Eep. 234 ; Matter of Hood, 104 N. Y. 103, 106; Matter of Kaufman, 39 St. Kep. 236. The court of appeals has summarized the practice in the fol- lowing language : " Those provisions (section 2545) point out the practice, to be followed with care and precision. The Surrogate is required to file in his office his decision stating separately the facts found, and the conclusions of law. Either party may except to the findings of fact or of law, and upon the settlement of the case may request findings, and take exceptions to a refusal, and the appeal brings up for review in the Appellate Court any question of fact or law thus raised by exceptions taken. The purpose was to assimilate the practice upon appeals from a Surrogate's decree in the prescribed cases to that which regulated appeals from a judgment rendered by the colirt or a referee, and to sub- stitute a system which would point out specific errors, and evolve the exact questions intended to be reviewed. Angevine V. Jackson, 103 N. Y. 470, 471. § 8. Exceptions nmstbe made as prescribed in the Code.— The appellant cannot secure a review of the Surrogate's deci- sion by a mere exception " to the decree and each and every HEARINGS AND TRIALS. 145 part of it ; " such an exception is useless. Angevine v. Jackson, supra ; Ward v. Craig, 87 N. Y. 550 ; Heplurn v. Montgomery, 97 id. 617. See also Matter of Falk,10 N. Y. Supp. 41 ; Mat- ter of Feck, 39 N. Y. St. Eep. 234. . The only exception to this rule is where, as has occasionally happened, the Surrogate, al- though expressly requested to make findings, refused to do so or to make a record of his refusal. If an exception to such refusal is duly taken it will raise a question for the appellate court, and the decree will be reversed {Matter of Kaufman, 39 St. Rep. 236), if it appears that this refusal is prejudicial to the appellant. Matter of Hicks, 14 St. Rep. 320. While the lan- guage of the Code makes it the duty of the Surrogate to make these findings, the omission to do so is a mere irregularity, and will not avail the appellant if he has not procured to be made, or attempted to procure to be made such findings or refusals and had his exceptions duly noted. Mattel^ of Hood, 104 N. Y. 103. See also In re Hesdra's Estate, 4 Misc. 37 ; Matter of O'Brien, 5 Misc. 136, 138. § 9. Procedure defined by the Court of Appeals. — The opinion of the Court of Appeals in Burger v. Burger, 111 N. Y. 523, at page 528, is most instructive. " We think the true rule under the Code is, that an appeal on the facts from the decree of a Surrogate, admitting or refusing to admit a will to probate, brings up for review in the Supreme Court the question of suf- ficiency, weight, or preponderance of evidence, and the general merits of the decision ; and that it is not necessary that any exception should have been taken to the findings of fact, or that there should have been any request for findings in order to give the general term jurisdiction to review the facts, and reverse or affirm the decision of the Surrogate thereon. But where the appeal is also upon the law, only such questions of law can be considered as have been properly raised by excep- tion. If the exception was taken to the conclusion of law of the Surrogate, it raises the question whether it was justified by the facts found. If taken to a finding of fact, it presents the question whether there was any evidence to sustain the finding. So, where the Surrogate refuses to make any finding whatever on a question of fact, or where he makes or refuses to make a ruling upon any question of law, an exception lies, and his deci- sion may be reviewed in the Appellate Court. But an exception to facts found, or to a refusal to find upon a question of fact, is 10. 146 surrogates' courts. only important to entitle the appellant to have a review, first in the Supreme Court, and afterwards in this court, of the strictly legal question which it is the office of an exception to present. But in the Supreme Court the facts are open for review without any exception. An application to a court for a new trial on the facts in no proper sense presents a question of law. It is an appeal to the conscience of the court, and it is asked to consider whether, on the whole facts, a new trial ought not to be had. The review on the facts by the Supreme Court, of a decision of a Surrogate admitting a will to probate, still retains, in many features, the character of a rehearing in equity. This is quite clear from section 2586 of the Code, which permits the general term, on appeal from the Surrogate on the facts, to receive further testimony or documentary evi- dence and appoint a referee, and declares the Appellate Court has the same power to decide the questions of fact which the Surrogate had." As a matter of a minor detail it has been held that it is the Surrogate's duty to note on the margin of each request to find his assent or refusal to find the same. Matter of Wheeler, 28 N. Y. St. Rep. 638. This serves a double purpose ; it enables the exception to his findings or refusals to find to be noted in an orderly way ; and also enables the Appellate Court to ascer- . tain without laborious inquiry and careful comparison whether a failure to find has or has not wrought injustice. § 10. Witnesses. — Such statutory rules as are prescribed in particular proceedings as to competency, etc., of witnesses will be found in the discussion of the appropriate topics, pout. But in view of the attempt to follow the order of the sections in the Code it is necessary here to take up the provisions of section 2544, which is as follows : § 3544. Bequest., etc., does not disqualify, etc., witness. A person is not disqualified or excused, from testifying re- specting the execution of a will, by a provision therein, whether it is beneficial to him or otherwise. Substituted for 2 R. S. 57, § 6, and part of § 50 of the same title. Note. See discussion at p. 352, post. It is Stated in the note to this section, in Throop's edition of the Code of Civil Procedure, that it was substituted for sec- tion 6, and a part of section 50 of part 2, chapter 6, title 1 of HEARINGS AND TRIALS. 147 the Revised Statutes. Those sections were, substantially, as follows : Section 6 provided that the creditor being a subscrib- ing witness whose debt is by the will made a charge upon lands devised, should notwithstanding such interest, be a com- petent witness to prove the will. Section 50 provided that : " If any person shall be a subscribing witness to the execution of any will, wherein any beneficial devise, legacy, interest, or appointment of any real or personal estate shall be made to such witness, and such will cannot be proved without the testi- mony of such witness, the said devise, legacy, interest or ap- pointment shall be void so far only as concerns such witness, or any claiming under him ; and such person shall be a com- petent witness, and compellable to testify respecting the exe- cution of the said will in like manner as if no such devise or bequest had been made." Section 51, referring to the same subject, provided : " In case such witness would have been en- titled, as heir or next of kin, to a share in the estate of such testator if he had died intestate, that he might recover from the devisees and legatees in the will, if established, his pro- portion of such estate, not exceeding, however, the amount devised to him by the will." Section 6 of the Revised Stat- utes was expressly repealed by chapter 245 of the Laws of 1880, and thereby rendered all interested witnesses, save those mentioned in section 50, which was expressly excepted from the repeal, incompetent to testify as subscribing witnesses. Section 2544 was, therefore, adopted as a substitute for sec- tion 6, and was intended to enlarge the former exception and embrace not only the special case provided for by the repealed section, but all other possible cases where an interest in the event of a controversy over the probate of a will, might, un- der the existing statute, disqualify a subscribing witness from testifying to its execution. Although it may not be easy to specify such cases the legislature, probably out of abundant caution, deemed it prudent by general words to embrace all subscribing witnesses by a comprehensive exception from dis- qualification by reason of interest. The language of the en- actment seems to support this view. The evidence authorized to be given by section 2544 refers to that given in Surrogates' Courts alone, and relates solely to the subject of the execution of the will. It was clearly intended to operate as a substitute for prior statutes that related to subscribing witnesses alone, 148 StTRROGATBS' COURTS. and there was no reason for including other persons in its pro- visions. The reason for exempting such witnesses from the application of the general rule of exclusion, made by sec- tion 829, is obvious, as their testimony is made indispensable, if obtainable, to the probate of a will. (Sections 2618, 2619.) Otherwise numerous wills to which legatees and others in- terested, who had, through ignorance, carelessness or inad- vertence become attesting witnesses, would fail in their pro- bate, and the wishes of their makers in respect to the dispo- sition of their property be altogether defeated. To obviate these consequences the provisions of the various statutes re- ferred to were adopted. To carry the effect of section 2544 beyond the object alluded to would make interested witnesses competent to testify to facts no more essential to the establish- ment of wills than many other transactions respecting which they are obviously, under section 829, incompetent now to testify. Matter of Eysaman, 113 N. Y. 62, pages 75, 76, 77, opinion of Ruger, Ch. J., and cases cited ; Matter of Brown, 31 Hun, 166. No disqualification is imposed by this section, except upon persons who could be called to testify respecting the execution of the will, that is, the subscribing witnesses. Matter of Eysa- man, supra; Estate of Voorhis, 1 How. N. S. 261. It does not apply to an executor as such. Child/ren^s Aid Society v. Loveridge, 70 N. Y. 387. Surrogate Tucker held in 1867, that there could be no doubt but that a person named in a will as executor, who is also a sub- scribing witness, could be examined as a witness on the probate. Section 2544 in no respect alters this rule. Hugg v. Rugg, 83 N. Y. 592 ; McBonough v. Loughlin, 20 Barb. 238. The sec- tion contemplates by the words, " A provision therein .... beneficial .... or otherwise," a legacy, or a bequest. Conse- quently, not only is an appointment as executor not deemed to be a provision beneficial or otherwise, within the meaning of this section, but a gift by will of a sum of money as compensa- tion for his services, even where it is provided that it shall be over and above his commissions, has been distinctly held not to be such a devise or legacy as would be forfeited, in case the executor so provided for, was also a subscribing witness and necessary to the probate of the will. Pruyn v. Brinkerhoff, 57 Barb. 176 ; Matter of Chase, 41 Hun, 203 ; Rugg v. Rugg, HEARINGS AND TRIALS. 149 83 N". Y. 592 ; In re Will of Huestis, 23 N. Y. Weekly Dig. 224 ; Reece v. Crosby, 3 Eedf . 74 ; McDonald v. Loughlin, supra; Children^ Aid Sooietya. Loveridge, 10 N. Y. 387; Matter of Folts, 71 Hun, 492. But, of course, where the exec- utor who witnesses a will is the principal legatee in addition to the interest above described, that fact brings him within the statute avoiding his legacy, if the will cannot be proved with- out his testimony. Matter of Smith, 95 N. Y. 516, explained by Euger, Ch. J., in Matter of Wilson, 103 N. Y. 374, and see Lane v. Lane, 95 IST. Y. 494. § 11. When witness can take.— Section 2544 refers to every witness whose testimony is essential to the proof of the will containing the provision constituting him a person interested. Where there are but two witnesses and both reside within the State, the evidence of neither can be dispensed with, and con- sequently any " beneficial devise, legacy, interest, or appoint- ment made to either in the will is void under the statute." Matter of Will of Orson, 18 Weekly Dig. 306 ; Matter of Brown, 65 How. 461. Where, however, of two witnesses, one is a non-resident and the will is proved without the testimony of the non-resident witness, he is not disqualified from taking under the will. Oornwell v. Wooley, 43 How. 475. So, where there are more than two witnesses, and the will is sufficiently proved by two of them without the testimony of the witness interested in any provision of the will, there is no disqualifica- tion under the statute. Cornwell v. Wooley, supra ; Caw v. Rolertson, 5 IST. Y. 125. See also Matter of BecTc, 26 Misc. 179, afl'd 6 App. Div. 211, and 154 N. Y. 750. The question whether the subscribing witness will, by testifying, forfeit his legacy is not material on the probate proceedings. Matter of Bech, supra; 6 App. Div. 211, 214. It comes up when he seeks to retain his legacy, as on accounting. Ihid., citing Caw v. Robertson, supra ; Cornwell v. Wooley, 1 Abb. Ct. App. 441 ; Matter of Brown, 31 Hun, 166. If his testimony is given, he cannot be allowed to withdraw it on the ground that he will imperil his legacy or devise. Ibid. If later, at the proper stage, he can demonstrate that the pro- bate proof was suificient, apart from his testimony, he may be allowed to have his legacy. So where there were three sub- scribing witnesses to a will, and it appeared from the Surro- gate's record, that is to say, the record of the will and of the 150 STTRKOGATKS' COtJETS proceedings and the examination taken by the Surrogate, that the will was proved by the testimony of two of the subscribing witnesses, and that the third had been sworn " to testify as to the questions which should be put to him by the Surrogate touch- ing the circumstances of executing the said will, and how his name came to be attached to said will as a witness," and it fur- ther appeared that his examination did not elicit the material facts ordinarily shown by a subscribing witness, his legacy would not be avoided. Caw v. Robertson, supra. See also Matter of Owen, 48 App. Div. 507. When legatees under a will are subscribing witnesses to a codicil to that will, it is held that their testimony on probate of such codicil does not pre- clude them from taking under the will, where it alone is proved, and the codicil is not necessary to the proof of the will. Mat- ter of Johnson, 37 Misc. 334. § 12. Taking evidence. — Except where a contrary intent is expressed in, or plainly implied from the context of, a provision of chapter 18 of the Code, which relates to Surrogates' Courts, the following sections apply to such courts and to proceedings therein : §§ 870-886, g-. v., relating to depositions taken and to be used within the State ; §§ 887-913, q. v., relating to depositions taken without the State for use within the State. Code Civ. Proc. § 2538. It is added, that they shall apply " so far as they can be applied to the substance and subject- matter of a proceeding, without regard to its form." In this connection therefore we now turn to the subject of taking tes- timony, by deposition, before the Surrogate, and before referees appointed by the Surrogate. § 13. Commissions. — Section 888 of the Code, which pre- scribes the cases in which a commission may issue, is, as we have just noted, made applicable to Surrogates' Courts by section 2538. See In re Plumb, 64 Hun, 317, affirmed in 135 JST. Y. 661. He had such power, originally, under chapter 460 of the Laws of 1837, § 77, but it was repealed in 1880 (chapter 245, § 1), and the Code provisions thereafter governed. By amendment to sec- tion 888 in 1894, a subdivision (6), was added reading, " In spe- cial proceedings." Standing alone this would seem to cover proceedings in Surrogates' Courts, but in fact does not except by virtue of section 2538. Attention is called to this somewhat confusing method of enactment in the Code which compels the practitioner to search carefully for modifying provisions HEAKINGS AND TRIALS. 151 before he dare rely on the jprima facie meaning of any section. (This is one of the features of the Code which call for special attention in the event of a revision.) The amendment of 1894 to section 888, was probably passed in view of a decision {In re Plumb), above cited, where the ex- press language of the section making its provisions applicable only to actions had been relied on in opposing the granting of a commission in a Surrogate's Court. There being now no question as to the Surrogate's power to issue a commission {Bristedv. Weeks, 5 Redf. 529; Cadmus v. Oakley, 2 Dem. 298 ; Henry v. Henry, i Dem. 253 ; Bull v. Kendrick, 4 Dem. 330), it is first to be stated that the same procedure is followed as is required in civil actions. And the decision of the courts in relation thereto will also be applicable so far as the substance and subject-matter of the proceeding admits. Thus, the party applying for the issuance of the com- mission must show by affidavit that the testimony of the wit- ness is material, that he is without the State, and, since the right is altogether dependent on statute {Matter of an Attorney, 83 N. Y. 164; McColl v. Sun Mutual Ins. Co., 50 N. Y. 332) that the case is one in which the proceeding is properly to be allowed. The commission must name the commissioner and the witnesses. Wallace v. Blake, 4 N". Y. Supp. 438. The latter should be specifically designated. If not named, the order is irregular, unless the unnamed witnesses are described as of a class, or are designated as about to be produced to testify to a particular distinct fact. If the witnesses are unknown but sufficiently described, the order is not irregular. Usually, the commission issues upon interrogatories, direct and cross (see Code Civ. Proc. § 891, et seq.) to be proposed by the parties and settled by the court. These interrogatories must be pertinent and material to the issues raised. Walton, v. Godwin, 54 Hun, 387 ; Thorp v. Riley, 3 'S. Y. Supp. 547 ; mine V. N. Y.C.&H. R. R. R. Co., 79 N. Y. 175 ; McDonald V. Garrison, 9 Abb. 178 ; Blaisdell v. Raymond, 9 Abb. 178?i. If the Surrogate in settling interrogatories allows an improper interrogatory, the remedy is by objection, on the hearing when the testimony is read. If, however, he disallows a pertinent interrogatory, the remedy is bv appeal from the order. JJline v. W. Y.C.&H. R. R. R. Co.,1Q N. Y. 175. § 14. The order. — An order must be entered, for a commis- 152 SURROGATES* COUHTS. sion on stipulation cannot issue except an order, on consent, be first entered. Interrogatories are to be annexed unless the order provide for an open commission to examine wholly or partly upon oral questions. But it seems an open commission should not issue except in cases where it clearly appears to be necessary for the purposes of justice {Beadleston v. Beadleston, 2 N. Y. Supp. 814:; ClarJcv. SuUwan,8 JST. Y. Supp. 565 ; Purdyy. Webster, 3 How. N. S. 263 ; Heney v. Mead, 4 Law Bull. 10 ; Dickinson V. Bush, 17 Week. Dig. 17), and never when the adverse party is an infant, or the committee of a person judicially declared to be incapable of managing his affairs, by reason of lunacy, idiocy, or habitual drunkenness ; or where the testimony is to be taken elsewhere than in the United States, or in Canada. Code Civ. Proc. §895; Bidl v. Kendrick, i Dem. 330. The Surrogate has discretion to grant or refuse the order. Jones v. Jloyt, 10 Abb. N. C. 324. But the order is appealable {Jemison v. Bank, 85 N. Y. 546) and will be reversed if it appear the discretion was unwisely or improperly exercised. Jones v. Hoyt, supra. If it appear that the party asking for the commission relies largely upon the testimony which it is claimed the witness to be examined will give, the order should be granted. Smith v. Talmadge, 3 Law Bull. 97. And if a commission is issued to take testimony without written interrogatories, as prescribed in section 893 or 894, notice of time and place of examina- tion of any witnesses thereunder (in which notice the witness must be named), must be served by the party on whose behalf the witness is to be examined on the attorney for the adverse party at least five judicial days before the deposition is taken ; which time must be lengthened by one judicial day for each fifty miles by the usual route of travel, between such attorney's residence, and the place where the deposition is to be taken. Code Civ. Proc. §§896, 899; Matter of Kendall, 2 Law Bull. 51. § 15. Same. — The commissioner is held to be an oificer of the court and in executing the commission to stand in the place of and to represent the court. So where a commissioner was appointed under the act of 1837, to take the testimony of the witnesses to a will in Scotland it was held that the production of the original will before him in Scotland was substantially a production of the will before the court. Russell v. Hartt, 87 HEARINGS AND TRIALS. 153 i?". Y. 18, 25 ; Matter of Belaplaine, 45 Hun, 225 ; Matter of Cameron, 47 App. Div. 123, 125. ^Qspost, p. 299. On the other hand the Surrogate is not bound to wait indefi- nitely for the execution of the commission. So where a hear- ing closed before the return of a commission to take testimony in a foreign country, and it appeared that by the exercise of diligence it could have been executed in time, the Surrogate in his discretion refused to open the hearing to receive it. Leslie V. Leslie, 15 Week. Dig. 56. The Surrogate's power to issue a commission, was, at first, sought to be limited to probate pro- ceedings, but the courts held that it was not the legislative intent so to limit it but that it could be exercised in any pro- ceeding. See Matter of Plumh, 64 Hun, 31Y. See also Estate of Voorhis, 5 Civ. Pro. Eep. 444. The power to issue a com- mission in an appropriate case may be exercised before the trial or hearing. In re Plurnb, 135 N. Y. 661. But when the ap- plication is postponed until a large amount of testimony has been taken, the Surrogate may exercise his discretion in regard to issuing the commission. Matter of Hodgman, 11 App. Div. 344. This case however was complicated by the fact that the term of the Surrogate before whom the proceeding was pending was about to expire, and the delay which the execution of the commission would have occasioned, would have been prejudicial. Application for commission nn- Surrogate's Court, County of Title. I der section 888 State of New York ' of the Code. County of being duly sworn, deposes and says : that he is the petitioner in {or one of the parties to or attorney for one of the parties to, etc.) the. above entitled proceeding which is now pending in the Surrogate's Court of the County of That is a resident of that the deponent requires the testimony of said wit- ness upon the trial of the issues involved in the above entitled proceeding ; that said is a necessary and material witness on behalf of the deponent who is a party to the above entitled 154 surrogates' courts. Order for com- mission. proceeding ; and the deponent further says : that it is necessary in order to protect the rights of said upon the hearing and determination of the issues in this proceeding that an order be made by the Surrogate authorizing the issuance of a commission to one or more competent per- sons named therein {or specify such person or persons by name as may he desired by applicant) authorizing them or any one of them to examine the said , the witness named therein, un- der oath, upon the interrogatories to be annexed to such commission, to take and certify the depo- sition of such witness and to return the same with the commission according to the directions given in {or with) said commission. (Jurat.) Surrogate's Court. Caption. Present : Hon. Surrogate. Title. X On reading and filing the aflSdavit of verified the day of 18 by which it appears to the satisfaction of the Surrogate, that the testimony of therein named, is mate- rial to the applicant, and that said is not within the State of New York, and that the issu- ance of a commission in the above entitled pro- ceeding is necessary {and if application has been opposed, and on reading and filing — specify op- posing papers') after hearing Esq., in support of said application (and Esq., in opposition thereto) and on motion of It is Ordered, that a commission issue in the above entitled proceeding dii-ected to (and ) of in the State of {or specify if it is a foreign country) to examine of the witness named in the above affidavit, under oatK, upon the interrogatories to HEARINGS AND TRIALS. 155 be annexed to such commission, to take and cer- tify the deposition of such witness and to return the same with the commission according to the directions given in (or with) the commission. And it is further Ordered, that (here specify other parties to the proceeding) be at lib- erty to join in such commission. And it is further Ordered, that the hearing of the issues in the above entitled proceedings be and they hereby are stayed until the further or- ■KT t mu o der of this court. Note. Note. The Sur- rogate is at liberty to proceed with the hearing if the execution of the coraraission is un- reasonably de- layed. Unless the interrogatories to be annexed to the commission are settled by consent of the parties, they must be settled upon notice by the Surrogate as prescribed by the general rules of practice. (§ 891, Code Civil Proc.) The interrogatories when settled must be annexed to the commission. Either party must be allowed to insert therein any question pertinent to the issue which he proposes unless the parties stipulate in writing, or the order granting the com- mission prescribes how it shall be returned, the Surrogate must indorse upon the commission the proper direction for that pur- pose (§ 892, Code Civil Proo). The usual practice is to re- turn the commission through the post office. § 16. Aged, sick or infirm witnesses. — The Code provides explicitly for the examination of witnesses suffering from physical disability. Testimony of aged., sick, or infirm witness. Upon the application of a party to a special proceeding, and upon proof, by affidavit, to the satisfaction of the surro- gate, that the testimony of a witness in his county, who is so aged, sick, or infirm, as to be unable to attend before him to be examined, is material and necessary to the applicant, the surrogate must, where the special proceeding was instituted to procure the probate or revocation of probate of a will, and. 156 surrogates' courts. in any other case, may, in his discretion, proceed to the place where the witness is, and there, as in open court, take his examination. Such a notice of the time and place of taking the examination, as the surrogate prescribes, must be given, by the party applying therefor, to each other party, except a party who has failed to appear as required by the citation. The surrogate may also, in his discretion, require notice to be given to any other person interested. § 2939, Code Civil Proc. L. 1837, chap. 460, § 12, as amended by L. 1841, chap. 129, §§ 1, 2 and 3. The above provisions, being special, apply in Surrogates' Courts rather than the general provisions of section 870 et seg., and such an examination as they relate to must be taken under section 2539, and not under the other. Estate of M^Coskry, 5 Dem. 256. § 17. Same. Testimony of aged, sick, or infirm witness in another county. In a case specified in the last section, except that the wit- ness is in another county, where the witness is a subscribing witness to a will, if the surrogate has good reason to believe that the witness cannot attend before him, within a reason- able time, to which the hearing may be adjourned, he may make an order, directing that the witness be examined before the surrogate of the county in which he is ; specifying a day, on or before which a certified copy of the order must be de- livered to the latter surrogate ; and directing notice of the examination to be given to such persons, and in such man- ner, as he thinks proper. A copy of the order, attested by the seal of the surrogate's court, must be transmitted by him to the surrogate designated in the order, together with the original will, where the testimony relates to the execution of a written will. The latter surrogate must, thereupon, on the day specified in the order, or on another day to which he may adjourn the examination, take the examination of the witnesses, as if be possessed original jurisdictiou of the spe- cial proceeding. The examination, after it is reduced to writing, and subscribed by the witness, or otherwise duly authenticated, together with a statement of the proceedings upon the execution of the order, must be certified by the surrogate taking the examination, attested by the seal of his HEARINGS AND TRIALS. 157 court, and returned without delay, with the original will, if any, to the surrogate wlio directed the examination, by whom all those papers must be filed. And in the other cases named in said section 2539, he may appoint a referee to take the testimony, who shall report the same to the said surrogate. An examination so taken has the same effect, as if it was taken before the latter surrogate. § 3540, Code Civil Proc. Sections 13, 14 and 15 of the act of 1837, as amended by the act of 1841, chap. 129. § 18. Analysis of sections 2639 and 2540.— These two sec- tions have been but seldom construed. From their provisions it will be seen that several cases are contemplated capable of arising. A. Proceedings for probate or revocation of probate of a will. In these proceedings, if the aged, sick, or infirm witness is in the Surrogate's county, the Surrogate rnust, upon satisfactory proof of the facts, by affidavit, go in person and examine such witness. If the witness is in another county, then the Surro- gate of that county may be designated, who in turn must upon receipt of the authorization provided by section 2540 go in per- son and examine such witness. Matter of McOloshey, 10 Civ. Pr. R. 178. B. Proceedings other than probate or revocation of probate. In other proceedings the Surrogate is not required to go in person, or to designate another Surrogate to go in person ; but may, whether the witness be in his county or in that of another Surrogate, appoint a referee to examine him and report, with the same effect as if he personally had taken the testimony. Section 2540 is loosely drawn, and must be carefully read. The last two sentences really form a separate section, referring to both sections 2539 and 2540. The first Surrogate referred to in section 2540 is, of course, the Surrogate before whom the pro- ceeding is pending, who makes the order designating another Surrogate " where the witness is a subscribing witness to a will." The rest of the section, except these last two sentences, refers to the examination of such a witness, and no other. 158 SUBROGATES COURTS. Affldarlt to procure exami- nation of aged, sick or infirm witness under § 2539 of the Code. Surrogate's Court, County of Title. I State of New York > _ County of j " being duly sworn, says, that he is the attorney for the proponent or {other party herein or specify the proceeding) ; that is one of the subscribing witnesses {or, is a material and necessary witness in support of, or, in opposition to, the petition therein) ; that said is past years of age, and is con- fined to his house, No. street, in by age and infirmity {or, sickness) , and is unable to attend before the Surrogate, to be examined in this matter. Sworn to before me this > day of 18 ( (Signature.) A physician's certificate duly verified may also reasonably be requiied by the Surrogate. Order for ex- amination of aged, infirm or sick witness, un- der § § 2539-40 Of the Code. Surrogate's Court, County of Title. I On reading and filing the affidavit of verified the day of from which it ap- pears to the satisfaction of the Surrogate, that the testimony of of No. street, in the city of is material and necessary to prove the due execution of said will {or specify proceeding and issue) and that the said is aged and infirm {or sick,) and the Surrogate having good reason to believe that the witness cannot attend before the Surrogate within a rea- sonable time : Now, on motion of the attorney for the proponent of said will {or the peti- tioner, or a party, etc.) HEARINGS AND TKIALS. 159 It is ordered, that the said be exam- ined before * me {or , counsellor at law, who is herebj' appointed referee for that purpose) at the residence of said No. street, in the city of New York, on the day of 18 or on an adjourned day to be fixed by me. ( Where witness resides in another county, con- tinue from * above,) the Hon. Surro- gate of the county of on the day of 18 or on an adjourned day to be fixed by him ; and that a copy of this order attested by the seal of this court be transmitted to said Surrogate, on or before the day of 18 (In will cases add, together with the orig- inal will.) {In any case add :) That days' written no- tice be given personally (or specify manner of giving notice) to the attorney of {ad- verse and other interested parties) of such exami- nation. That all proceedings herein stand adjourned till the day of 18 at o'clock M. But "in the other cases named in section 2539, he, i. e., the Surrogate before whom the proceeding is pending, may ap- point a referee," etc. Matter of Gee, 33 N. Y. Supp. 425, Ar- nold, Surr. Unless this be kept clearly in mind, much need- less confusion and delay might be caused the practitioner. It is clear from these sections that in probate proceedings the testimony of an aged, sick, or infirm witness who is in another county cannot legally be taken before a referee. Matter of MoCoskrey, 5 Dem. 256. Notice of ex- Surrogate's Court, amination of County of aged, sick or in- _ -j firm witness. Title, j- Please take notice, that {note) the Surrogate Note. When ^i _ county, will take, in this matter, the examination is to examination of (one of the subscribing be had before Bef- 4. ii,^ -ii * 1 *. * eree say, that I witnesses to the Will of late of shall briiiCT on the deceased), at the residence of said examination of No, street, in the eity of county 160 SITBEOGATES' COURTS at before Hon. the Bef- e r e e designated for that purpose by order of the Surrogate of the county of made and entered the day of 18 at o'clock M. of that day. of on the o'clock in the (Dated.) day of 18 at noon. (Signature.) Attorney (etc.), To (name? of those to whom notice is required.) Note. Add, either on face of notice or by in- dorsement : This notice is served upon you pur- suant to an order of Hon. Surrogate of the county of made and entered the day of 189 Attorney for Record of ex- amination. Note. It would seem under the last sentence of § 2.540 as if the pa- pers should be entitled before the Surrogate of orig- inal jurisdiction. Note. The tes- timony must be subscribed by the witness (§ 2540). Certificate of Surrogate to ex- amination. Surrogate's Court, County of note. Title. I Examination of a witness sworn and examined in the above-eutitled special proceed- ing, before Hon. Surrogate of the county of pursuant to an order of the Surro- gate of the county of made on the day of 18 State of New York) g . County of \ ' ' The said being duly sworn and exam- ined on behalf of says (the testimony may by consent be taken in narrative form, both as to direct and cross-examination, otherwise it should be set forth in question and answer). Note. Surrogate's Court, County of Title. I I, Surrogate of the county of hereby certify that, pursuant to the annexed or- der of Hon. Surrogate of the county of directing that an aged and infirm {or sick) witness be examined before me on the day of 18 I attended on HEARINGS AND TRIALS. 161 said day, at No. street, in the (city) of the residence of said (here state any adjournvnent or other proceeding), and there took the examination of said witness, and that I caused the examination of said witness to be re- duced to writing, as above, and the same was subscribed by said witness in my presence (aUo other authentication under section 2542 should be recited) and is hereby annexed. In testimony whereof, I have hereunto set my hand, and have affixed the seal of my court, the day of 18 in attestation thereof. (Seal.) (Signature.) Surrogate. How m.inutes of testimony authenticated. The minutes of testimony, written out as prescribed in the last section, or taken by the surrogate, or under his direc- tion, while the witness is testifying, must, before being filed, be authenticated by the signature of the stenographer, referee, the surrogate, or the clerk of the surrogate's court, to the effect that they are correct: § 3543, Code Civil Proc. Minutes of testimony ; to be bound in volumes, etc. In the city and county of New York, in the county of Kings, and in uny other county where the supervisors so di- rect, the minutes of testimony written out by the stenog- rapher must be bound, at the expense of the county, iu volumes of convenient size and shape, indorsed "Steno- graphic minutes," and numbered consecutively. Upon the record of a decree made in any contested matter, the surro- gate must cause to be made a minute, referring to each vol- ume of the stenographic minutes, and to the pages thereof containing any testimony relating to the matter. § 2543, Code Civil Proc. § 19. References in Surrogates' Courts. — We now pass to the discussion of references by a Surrogate. Notwithstanding the provision below noted as to the similarity of such references to references in the Supreme Court, they have nevertheless been made the subject of particular discussion which requires to be carefully noted. The Surrogate's power to refer is based upon section 2546, which is as follows : 11 162 surrogates' coukts. Surrogate may refer question of fact or account. In a special proceeding, other tlian one instituted for pro- bate or revocation of probate of a will, tbe surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact ; to examine an account rendered ; to hear and determine all questions, arising upon tlie sottlcment of such an account, which the surrogate has power to deter- mine ; and to make a report thereon ; subject however, to confirmation or modification by the surrogate. Such a ref- eree has the same power, and is entitled to the same compen- sation as a referee appointed by tlie supreme court, for the trial of an issue of fact in an action ; and the provisions of this act, applicable to a reference by the supreme court, ap- ply to a reference, made as prescribed in this action, so far as they can be applied in substance without regard to the form of proceeding. The surrogate of the county of New York may, on the -written consent of all the parties appear- ing in a probate case, appoint a referee, or may, iu his dis- cretion, direct an assistant to take and rei)ort the testimony, but without authority to pass upon the issues involved therein. Unless a referee's report is passed upon and eon- firmed, approved, modified or rejected hy a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice. § 3546, Code Civil Proc, as am'd by L. 1899, Chap. 607. § 20. Development of Surrogate's power to refer. — The Surrogate's power to refer was originally limited to account- ings, but on the adoption of the Code his power was amplified and nowJn virtue of frequent amendments may be summarized as follows: As to the examination of an account rendered, the Surrogate may appoint a referee to hear and determine; in addition to this he may appoint a referee to take and report evidence on any specific issue or upon all the issues in any other proceeding in his court except one instituted for probate or revocation of probate of a will. But in addition to this it is provided that in Xew York County the Surrogate may, even in probate cases, appoint a referee to take and report the testi- mony, provided written consent of all the parties appearing HEARINGS AND TRIALS. 168 on the probate is filed. Such referee is without authority to pass upon the issues involved. In proceedings to remove an administratrix the Surrogate ordered a reference " to take testi- mony and report with his opinion thereon." Held valid. Matter ofFerrigan, 42 App. Div. 1,4; Matter of Hale, 45 App. Div. 578. So, also, to take testimony as to whether a disputed claim had been rejected, and whether the Statute of Limita- tion had run. ifai!te/- o/^oes, 54 App. Div. 281. The Surro- gate it will be noted has also power without the consent of the parties, and of his own motion, to direct one of his assistants to take and report the testimony in a similar case and he is subject to this same limitation. With this summary analysis of the section we pass to the powers of Surrogates' referees : § 21. Practice on references in Surrogate's Court.— The order of reference should be exact in defining the extent of the referee's functions. It is customarv to use the language of the Code, where the reference is to hear and determine. The person named as referee should of course be free from the disquahfications which would prevent the Surrogate himself from trying the cause or hearing the evidence. A referee to hear and determine must be sworn, although where there are no infants, or parties not represented, the omission to take the oath will be deemed a mere irregularity in case the hearing proceeds without objection. Mason v. Luddington, 56 How. Pr. 172. The referee has power to rule onallquestions of the admissibility or exclusion of evidence. The general rules of practice cover references in Surrogates' Courts. Matter of Riissell, 3 Dera. 377; Matter of Leffingwell, 30 Hun, 528. Keasonable notice of intention to proceed with the hearing is sufficient. The fourteen days' notice is not requisite. M Redf. 100; Matter of Bayer, 54 Hun, 189. The provision of section 1023 of the Code prohibiting a referee from making additional findings of fact or ruling on questions of law after he has rendered his decision, are not ap- plicable to special proceedings, and therefore do not apply to Surrogates' Courts. Matter of Bayer, supra. Barker, J. P. But a matter will not be sent back to a referee for a rehearing for an immaterial cause or where no fraud or clerical error is claimed to exist, or where it is clear that no injustice has been done. Matter of Kr am, ^\ Hun, 463. Nor will the report be sent back merely because there is a conflict of evidence in the testimony taken before the referee ; in such a case the Surro- gate will support the finding of the referee unless it clearly amounts to a finding unsupported by evidence. Matter of Odell, 1 Connoly, 94. A Surrogate may send a matter back for additional report where there has been some accidental • Parker, J., in liis dissenting opinion correctly states the Intent of this amendment, drawn by the author as counsel to the committee of the As- sembly that investigated the Surrogate's Court in New Tork County. HEAKINGS AND TRIALS. 169 omission rendering the report incomplete or unintelligible. AbercromUe v. Holder, 63 N. Y. 628. § 27. Filing new objections to account before referee.— It is to be noted that where a disputed account is referred, the issues raised before the referee are determined by the objec- tions filed in the Surrogate's Court. Prior to the Code, when it was the practice to send such accounts to an auditor, it was held by the Court of Appeals {Boughton v. Flint, 74 N. Y. 476), that the auditor had no judicial powers but was employed simply to aid the Surrogate, and that it was not within his power to allow further objections to be liled before him, and that the proper practice in case additional objections are desired to be filed would be by application to the Surrogate, by whom thej'^ could then be referred to the auditor. It is submitted that the reasoning on which this decision was based is not applicable to referees under the Code in Surrogates' Courts in view of the decisions conceding judicial powers to such referees, and even holding that a referee has power to allow an objec- tion to be amended, and even to allow new objections to be interposed {Matter of Fithian, 3 N. Y. Supp. 193, Eansom, Surr.), although in this case leave to file the new objection was in fact granted by the Surrogate. See part VIII, Ac- countings. See Matter of Oearns, 27 Misc. 76, and cases cited. § 28. Compensation of referee. — With regard to his fees a referee in a Surrogate's Court stands substantially upon the same basis as a referee in the Supreme Court. This is ex- pressly provided by § 2566 of the Code, which is as follows : § 3566. Fees of other officers, and witnesses. Each other offlcer, including a referee, and each witness, is entitled to the same fees, for his services and for traveling, as he is allowed for like services in the supreme court. 2 R. S. 69, § 19. The statutory compensation of referees in the Supreme Court was increased by chapter 90 of the Laws of 1896, amend- ing §3296 of the Code to $10.00 a day. There is no ques- tion, however, but that the parties to a reference in the Surrogate's Court may stipulate that the referee shall not be limited to the statutory fees for his services ; but, to make such stipulation valid, it must, first, be entered upon the minutes 170 surrogates' courts. and second, it must fix the rate of compensation. First National Bank v. Tamajo, 77 N. Y. 476 ; Griggs v. Ouinn, 29 Abb. N. C. lU ; Griggs v. Bay, 18 N. Y. Supp. 796, aff'd 135 N. Y. 469. If the parties particularly agree at the commencement of the reference that the referee shall not be limited to the statutory fee, and also agree what he shall be entitled to charge, a sub- sequent entry upon the minutes of the terms of their agree- ment will be deemed to have been made in compliance with the statute, " at or before the commencement of the trial." Griggs v. Bay, 135 N. Y. 469 ; Philhin v. Patrick, 22 How. Pr. 1. A stipulation that the referee may charge such fees for his services as he deems proper is insufficient, and if such stipu- lation is subsequently repudiated, the court is limited to al- lowing only the statutory fees. Matter ofHurd, 6 Misc. 171. The referee is entitled to charge for every day occupied in the hearings, ^nd also for the time spent in the investigation and consideration of the case after its submission. Berg v. liottek, Daily Register, Dec. 28, 1889. This of course means a rea- sonable time and must be determined by the nature of the case (jr the character of the questions before him. Fay_ v. MtM- ker, 13 Daly, 314. The amount of time spent, when the fees are to be taxed, should be proved by affidavit. Such affidavit should not only show the time actually used, but should also contain a specific allegation that the time used was necessarily required. But if the parties omit to requii'e such proof of time occupied, and an allowance Is incorporated in the decree and the executor directed to pay the referee a specific sum, an Ap- pellate Court will not disturb the Surrogate's allowance ; for no question as to its propriety is in such case presented. Hancock v. Meeker, 95 N. Y. 528 ; Kearney v. McKeon, 85 N. Y. 136 ; Brown v. ^Yind>lluller, 4 J. & S. 75 ; Shultz v. Tr/i«/?)./(/, 17 How. Pr. 471. In the absence of a stipulation, the statutory provision is mandatory upon the Surrogate in fixing the referee's compen- sation. Matter of Willett, 6 Dem. 435. So, also, if a stipula- tion be made upon the referee's minutes that the referee shall be paid such sum as shall be fixed b}^ the Surrogate upon the coming in of his report, the Surrogate has no power to give him more than the statutory compensation. Matter of Gill- man, 12 Civ. Proc. R. 179. HEARINGS AND TRIALS. 171 § 29. How to collect referee's fees.— Before the Code it was held that an auditor could not withhold his report until his fees were paid, but that it was proper that the fixing of his compensation should be deferred until the confirmation of )iis report, at which time the Surrogate should fix it. Ex parte Foster, 3 Eedf. 532. Since the Code, however, it appears that a referee may refuse to file his report until his fees are paid, although he runs a risk of the termination of the reference in case he fails to file or deliver his report within sixty days, as prescribed by section 1019 of the Code. See Matter of Santos, 31 Misc. 76 {ante, p. 163). Nevertheless even though he have not filed his report within the sixty days, he will not be pre- cluded from recovering his compensation in the absence of proof that either party actually elected to terminate the refer- ence. Nealis v. Meyer, 21 Misc. 314. See Hierman v. Hap- good, 1 Den. 188 ; ffNeil v. Howe, 16 Daly, 181. To avoid the termination of the reference the requirement of section 1019 nfust be literally complied with. Phipps v. Carman, 81 N. T. 650. So where within the sixty days, a referee, having com- pleted his report, gave written notice to the attorney for the prevailing party that his report was readj'^ for delivery upon payment of his fees, but it was not filed or delivei-ed until af- ter the sixty days, and after a notice of termination had been served, the tender of the report was held not to be a delivery within the intent of the Code. Little v. Lynch, 99 N. Y. 112. There is a peculiarity regarding references in the Surrogates' Courts, due to the fact, that on the one hand the Surrogate is powerless to direct the referee to file his report in advance of receiving his fees, and on the other hand powerless to direct any one of the parties to the proceeding to pay the referee be- fore the report is filed. Geib v. Topping, 83 IST. Y. 46 ; Per- kins V. Taylor, 19 Abb. Pr. 146 ; Matter of Kraus, 4 Dem. 217. In the case last cited Surrogate Eollins used the follow- ing language : " If the referee shall see fit to file his report with- out exacting his fees, provision can be made, in the final decree or order that may hereafter be entered in this proceeding for the payment of those fees by such of the parties hereto as may be found justly chargeable therefor. And if any one of the parties shall pay the referee, and it shall, at the termination of the proceeding, appear that such party ought not, under all the circumstances, to be charged with the expenses of the ref- 172 STTEROGATES' COXJBTS. erence, a direction may be given for his reimbursement, and for payment of costs of reference, either out of the assets of the estate or by some one of the parties hereto as may seem just and proper. Originally, a referee must look for his fees to the party who takes up the report. Attorney Oeneral v. Continental Life Ins. Co., 93 N. Y. 45, 47. But the Court of Appeals held that while ordinarily, the court could not direct the parties to action to pay the fees and take up a report, yet, where the party ^vas a receiver appointed by the court, whose legal expenses are properly payable out of the fund involved, the court has power to order the referees' fees to be paid out of the fund. So it has been held by analogy, that where a reference in a Surrogate's Court is necessary, as for example, upon the accounting of an executor or administrator who is an officer of the court over whom it has general supervision and control in directing the distribution of the estate or fund; the Surrogate's Court will have power to direct the payment of the referees' fees in a proper case out of such fund. Matter of Rurd, 6 Misc. 171, Abbott, Surr. The Appellate Division re- cently held that the referee has the right to exact as a condi- tion of the delivery of the report the payment of his fees, and the court will sustain the attorney of the successful party in paying the same in order to secure the report; and lays down the rule, that the attorney in the event that the amount paid shall prove to be greater than the court will allow, is not per- sonally to be chargeable with the excess paid; but the payment to the referee will be deemed to be made upon the implied con- dition that they shall be adjusted at the time of taxation of costs exactly as they might have been fixed by the court, if an application for that purpose had been made, and an under- standing between the parties must be implied, that if, for any reason the amount paid to the referee shall prove to be greater than the court thinks is a proper allowance, the excess will be returned. Duhrlcop v. White, 13 App. Div. 293, opinion by Rumsey, all concurred. See also Matter of Kenny, N. Y. Law Journal, October 24, 1890. Eule 22, of the Surrogate's Eules in the county of New York, provides explicitly, that where a party to a decree shall deem himself entitled to tax disburse- ments for referees' and stenographers' fees, such disbursements should be sustained by affidavit or detailed proof by the ref- eree or stenographer. This is exclusive of the certificate re- HEABINGS AND TRIALS. 178 quired of such referee when services of counsel upon the refer- ence is made the basis of a claim for an allowance. If the case is not one where the Surrogate may properly di- rect the referee's fees to be paid out of the fund or estate, the referee is remitted, in case he be not paid his fees when the report is taken up, or filed, to a common-law action to recover them {Little v. Lynch, 99 N. Y. 112, 114). § 30. Trial by jury. — It has been stated that Surrogates have no jurisdiction over civil actions. See ante, part 2, chap. 1, section 1. Nevertheless provision is made by the Code under which the verdict of a jury can be had in certain specific cases on specific issues of fact arising in proceedings in the Surro- gate's Court. The provisions of the Code are contained in section 2517, which is partly as follows : Trial by jury ; when ordered. The surrogate may, in his discretion, make an order direct- ing the trial by jury, at a trial term of the supreme court to be held within the county, or in the county court of the county, of any controverted question of fact arising in a special proceeding for the disposition of real property of a decedent, as prescribed in title fifth of this chapter. The order must state distinctly and plainly each question of fact to be tried, and it is the only authority needed for the trial. Either of the surrogates of the county of New York may, in his discretion, make an order transferring to the supreme court any special proceeding for the probate of a will pend- ing before him, or in the court over which he presides, and thereupon the issues of fact arising in such proceeding shall be heard and determined by the supreme court. The order transferring such proceeding is the only authority necessary for the trial in the supreme court of such issues of fact. Such issues of fact shall be tried by jury. . . If a motion to set aside the verdict be not made, or if at tlie termination of the proceedings for its review, the verdict is sustained, the supreme court shall certify to the surrogate's court the verdict, which shall be final and conclusive upon the parties to the litigation and their privies. Thereafter all proceed- ings relating to the will and to the estate of the decedent shall be had in the surrogate's court. The original will shall be returned to the surrogate's court at the time the verdict is certified thereto. The costs shall be taxed in the surrogate's 17-4 surrogates' courts. court, and shall be the same, and shall be awarded in the same manner as if the proceedings liad been heard by the surrogate. § ^547, Code Civil Proc. (It will be noted tluit a portion of section 2547 has been omitted above ; it relates entirely to appeals from the verdict of such a jury and will be included and discussed in chapter VI post, under Appeals.) From the section just quoted it appears that there are only two proceedings in which the Surrogate may direct a trial by jury of specific issues. The one a special proceeding for the disposition of real property of a decedent, the other a special proceeding for the probate of a will. Any controverted ques- tion of fact arising in the first proceeding may be so dealt with by any Surrogate in the State. But issues of fact arising in a probate proceeding can only be transferred by either of the Surrogates of the county of Kew York. A further dis- tinction is to be noted, that in the first case, that is of a pro- ceeding for the disposition of a decedent's real property, the proceeding itself is not transferred to the Supreme Court but the Surrogate's order specifies the controverted question or questions of fact, which in his discretion he determines should ije tried by a jury and only those issues (which must be plainly and distinctly stated) will be so trietl. But the second case, that is a special proceeding for the probate of a will pending in the county of Xew York, it is provided shall be transferred as a proceeding to the Supreme Court and thereupon the issues of fact arising in such proceeding shall be heard and deter- iTiined by the Supreme Court. Various puzzling questions have arisen as to the Surrogate's power in the premises when the order directing the trial of a specific issue or transferring a probate proceeding has once been made and while the pro- ceedings or issues are before the Supreme Court. The intent of the Code is, in the first place, very clear that when the Surrogate has directed such a trial by jury and the verdict -has been certified back to him (whether immediately in case of no appeal, or finally after appeal and affirmation or otherwise as the case may be), the verdict shall be final and conclusive upon the parties to the litigation and their privies. By reason of this explicit language confusion is likely to be caused, if the distinction is not kept in mind between this trial by jury which HEARINGS AND TRIALS. 176 the Surrogate may direct and the trial by jury herein below discussed which the Appellate Court may award where a de- cree admitting a will to probate, or revoking the probate of a will is reversed or modified by such Appellate Court. In the latter case the Surrogate's Court has no jurisdiction to grant a new trial, for until the final judgment is entered upon the verdict of the jury and finally certified to the Surrogate's Court, the matter is deemed to be still pending in the Supreme Court. Matter of Patterson, 63 Hun, 529 ; Matter of Clark, 40 Hun, 233. The reason for this is that the probate proceed- ing in case of an appeal from the Surrogate's decree is removed into the Supreme Court, which becomes a court of original jurisdiction and as such, has po\ver to decide any question of fact which the Surrogate could have decided and may even in its discretion receive further or documentary evidence, or ap- point a referee. Code Civil Proc. § 2586. But in regard to a case where the trial by jury is ordered by the Surrogate, a motion for a new trial may be entertained either by the Surrogate or the Supreme Court. Code Civ. Proc. § 2548. See Matter of Booth, 24 JST. Y. St. Eep. 647. Where the whole proceeding is removed into the Supreme Court it would doubt- less be improper for the Surrogate to make any order in the premises. Thus, before the abolition of the Court of Common Pleas in the city of Kew York, when the Surrogate had trans- ferred a proceeding to that court, it appeared that a witness was about to leave the State, who was a necessary and im- portant witness, the petitioner for probate at once moved in the Court of Common Pleas for an order for the examination of the witness before trial, but this order was vacated on the ground that the Code provisions upon which it was founded had no application to special proceedings but only to actions, and consequently could not refer to any matter removed from the Surrogate's Court. The proponents promptly moved in the Surrogate's Court for an order vacating the order for transfer so as to vest the Surrogate again with jurisdiction over the proceeding, with a view to his granting an order for the examination of the witness. Surrogate Rollins held, that he had no power to vacate the order of transfer, but intimated that as he was about to leave the county and as until his return the powers and jurisdiction of his court were to be exercised by the Court of Common Pleas, the application could be renewed 176 SUKROGATBS' COURTS. in that court during the time it was possessed of his powers, although under the mere order of transfer it had no such power. Matter of Delajplaine, 6 Deim. 269. It is submitted that if the Court of Common Pleas had power to make this order for examination in the proceeding pending before it, only by virtue of its temporary exercise of the powers and jurisdiction of the Surrogate's Court, it is clear that the Surrogate could, in the exercise of the same power, have made the order for the examination of the witness, him- self, and if such power should be exercised in a given case it would doubtless be sustained in the absence of any other provision by law, as otherwise a party might be materially prejudiced. And it has been expressly held {Matter of Blair, 60 Hun, 523, 525), that where a Surrogate transferred certain probate proceedings to the Court of Common Pleas he was not divested thereby of any of the powers conferred upon upon him by the statute, except the specific powers expressly conferred upon the Court of Common Pleas by force of the transfer. The General Term, Barrett, J., held that, " he could doubtless no longer try the issues of fact arising in the special proceeding for the probate of a will; that power by force of this transfer at once became vested in the Court of Common Pleas. But that power alone was transferred and that power alone became so vested. The transfer of such other powers as are vested by law in the Surrogate's Court, and are not necessary to the due execution of the power transferred cannot be implied." So it was held in that case that an appli- cation to the Surrogate's Court while the probate proceedings were still in the Court of Common Pleas, for the appointment of a temporary administrator was proper and should be granted. And it was moreover held that the provision in section 2547, "Thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the Surrogate's Court," were not to be taken as meaning, that during the transfer, ju- risdiction over such proceedings was in the court to which the specific matter was transferred, but that the words were in- serted in the section plainly for abundant caution. HEARINGS AND TRIALS. 177 Order direct- ing: trial of issues by jury. Note. As to which it seems the Surrogate may direct the framing o£ an issue. See Mead v. Jenkins, 4 Redf. 369 ; re- versed on another point, 27 Hun, 570. Present : Surrogate's Court. Caption. Hon. Surrogate. In the matter of the disposition \ of the real estate of ' deceased, for the payment of his delDts. By virtue of the authority vested in this court and in the Surrogate of this county by section 2547 of the Code of Civil Procedure, it is hereby Ordered, that the below specified controverted questions of fact arising in the above entitled proceeding be tried by jury at a trial term of the Supreme Court, to be held within this county (or in the County Court of this county). Statement of issues to be tried : (Here specify the issues distinctly and plainly, such as the title of the testator or the validity of the creditor's claim. {Note.) State each issue interrogatively. ) And it is further Ordered, that the verdict of said jury be certified back to this court according to law. (Signature.) Order by New York Surrogate for trial by jury under section 2547oftlie Code. Note. Note. This or- der is the only authority neces- sary for the trial in the Supreme Court of the is- 12 Present : Surrogate's Court. Caption. Hon. Surrogate. In the matter of the probate \ of a paper propounded as ! the last will and testament [ of deceased. J By virtue of the authority vested in the Surro- gates of the County of New York by section 2547 of the Code of Civil Pi-ocedure, it is hereby, on motion of the above Surrogate Ordered, that the above entitled proceeding now pending in this court for the probate of the alleged last will and testament of late 178 SUKROGATES' COURTS. sues of fact which of the county of New York, deceased, be and must be tried by tjje same hereby is transferred to tlie Supreme jury, the subse- Court in and for the county of New York for the queue proceed iiigs .,„.,. „ ,. . . ., ,■ ,. beine fuUv indl- issues of fact in said proceeding by cated in section ^ J^^y- 2447. (Signature.) Note. It seems to be the practice for the cal- endar clerk to notify the parties of the removal of the proceedings by virtue of this order. It should be further noted that the verdict of the jury is certified back to the Surrogate's Court by the Supreme Court and that no order retransfer- ring the proceedings to the Surrogate's Court is necessary, as after the said verdict is certified back all proceedings relating to the will and to the estate of the decedent must be had in the Surrogate's Court by operation of law. See sec- tion 2547, C. C. P. An order, a form for which has already been given, remitting proceedings to the Surrogate's Court, is necessary only where proceedings have been transferred to the Supreme Court by reason of some vacancy or disability of the Surrogate as above discussed. CHAPTEE IV. DECREES AND OKDEES. § 1. Surrogates' decrees. — Section 2550 is as follows : "The final determination of the rights of a party to a special proceed- ing in the Surrogate's Court is styled indifi'erently a final oi'der', or a decree." Such determination of course presupposes a proceeding be- fore the Surrogate initiated by petition and citation. This final order or decree contains the adjudication which the Sur- rogate is required to make fixing the rights of the parties before him. The validity of the decree hinges on, first, the power of the Surrogate to make it, which of course involves the regular- ity of the proceeding with regard to the jurisdictional facts. Secondly, it hinges upon its formal regularity. With regard to the first question it is merely necessary to restate the proposi- tion that one claiming under a decree of the Surrogate must show affirmatively his authority to make it. Matter of Ilam- leij, 104 N. Y. 250, 262 ; Farmers' L. dc T. Co. v. Hill, 4 Dem. 41. As to its formal character the decree must be signed by the Surrogate. Roderigas v. E. R. Sav. Inst., 76 N. Y. 316. Should an unsigned decree be filed by the clerk, it can have no validity from the mere fact of filing, and can be disregarded without liability to proceedings for contempt. McNanghton V. Chave, 5 Abb. IST. C. 225. One of the tests of whether an order made by a Surrogate is a final order, that is, a decree within the meaning of section 2550, is whether a party can be punished, as for contempt for disregarding it or disobeying it. See discussion under section 2555. The best rule for determining, however, is the ordinary test of common sense as to whether the order in question is a final determination of a special proceeding or not. Thus, where, after proceedings by a judgment creditor against an executor in the Surrogate's Court, petition is made that the executor be punished for contempt for failure to pay the judgment claim, and upon such petition the Surrogate makes (179) 180 surrogates' courts. an order directing the executor to pay, such an order is a final order within the meaning of the section. There is no further order in the premises which the Surrogate need make in the proceeding. It is a final determination as between the judg- ment creditor and the legal representative of the estate ; it is in effect a decree for the payment of the money. See Matter of McMaster, 14 C. P. Eep. 195. § 2. Effect of Surrogate's decree. — There are certain spe- cific statutory provisions. See section infra, defining the con- clusiveness of certain decrees of a Surrogate. Generally speak- ing, however, the conclusiveness of a decree depends upon the regularity of the proceedings before the Surrogate, the citation of all necessary parties upon such proceeding, and its jurisdic- tional validity. No consent of parties as has been already noted (seepage 11 above) can give validity to the decree if he has not jurisdiction to make it, but his decree upon a question within his jurisdiction is, generally speaking, conclusive upon the parties to the proceeding. Frethey v. Durant, 24 App. Div. 58, 62 ; Graham v. Linden, 50 N. Y. 547. Except as to particular decrees, the effect of which is limited by the statute, a Surrogate's decree is a decree in rein and, therefore, is con- clusive upon the question covered by it. Thus, where a Surro- gate has jurisdiction to pass upon a claim, and decides adversely, his decree bars a subsequent suit upon such claim. Baldwin V. Smith, 91 Hun, 230. The right to appeal from a decree is always to be taken into account, but apart from this the cases are uniform with reference to the conclusiveness of the Surro- gate's decrees. See Stiles v. Burch, 5 Paige, 132, where the Court of Chancery expressly declared in its own decree that the decree of the Surrogate involved in the case at bar was binding and conclusive between the parties to the proceeding as to the facts upon which the Surrogate had power to adjudi- cate. See also Wright v. M. E. Church, Iloff. Ch. 202, hold- ing that the Surrogate's decree, his jurisdiction being conceded, was final as to all who were legally competent and were cited; that it was pleadable in every court and the oxA.y remedy was by appeal. See Ball v. Miller, 17 How. Pr. 300, holding that a Surrogate's decree upon a final accounting is conclusive as to balance therein stated to be due the representative of the es- tate. Such a decree is also conclusive upon the sureties in the administration bond. See also Johnson v. Stnith, 25 Hun, 171. DECREES AND ORDERS. 181 Such a decree has been held wholly conclusive against one of the parties interested in the fund, duly cited upon the account- ing. Bushnell v. Drinker, 5 Eedf. 581 ; Brown v. Wheeler, 53 App. Div. 6, 8, citing Garlock v. Vandevort, 128 N. Y. 374 ; Eiggs v. Cragg, 89 N. Y. 480 ; Matter of Verplanch, 91 IST. Y. 439 ; Purdy v. Hayt, 92 1^. Y. 446. See post, p. 1506. One not thus a party may, however, move in a proper case to re- open the decree and proceeding. Matter of Killan, 66 App. Div. 312. In fact this is the proper remedy. If he tries to compel an account de novo, his application may be denied, and costs imposed on him personally. Ihid. However, every de- cree must be viewed in the light of the subject-matter with which it has to deal. Its conclusiveness is determined thereby. For example : A decree made by the Surrogate in the final settlement of an executor's accounts is an adjudication merely as to amounts received and paid out by him, and, therefore, as to the balance due to or from such executor. Johnson v. Richards, 3 Hun, 454. But it conclusively establishes the propriety of his acts up to that time {Matter of Union Trust Co., 65 App. Div. 449), in the capacity in which he accounts. For it has been held {Matter of Doheny.. 10 App. Div. 370), that where A and B accounted as temporary administrators, the de- cree was inconclusive when later they accounted for the same estate as trustees. See § 2742, C. C. P. post, quoted at p. 1506. But where the Surrogate has jurisdiction of the parties and of the subject-matter, his decree has the same force and effect as the judgment of any other competent court. Garlock v. Vande- vort, 128 N. Y. 374 ; Shimmel v. Morse, 57 App. Div. 434 ; Mutual Lfe v. Schwaner, 36 Hun, 373, aff'd 101 N. Y. 681 ; Baldwin v. Smith, 91 Hun, 230. As to infant parties, the court, having duly appointed a guardian ad litem, has full ju- risdiction of the person, and its decree binds the infant. Mat- ter of Hawley, 100 IST. Y. 206 ; Matter of Wood, 70 App. Div. 321, 324. So future remainder-men, not in being, may be bound. Rhodes v. Caswell, 41 App. Div. 229. But the decree cannot have any conclusive effect or operate as a bar as to property not involved in it. Frethey v. Durant, 24 App. Div. 58. § 3. Collateral conclusiveness. — With regard to the collat- eral conclusiveness of such a decree it is to be borne in mind that as the court is one of special and limited jurisdiction those 182 surrogates' courts. claiming collaterally under such a decree must prove the juris- dictional facts from which it derives its validity. Corwin v. Merrit, 3 Barb. 341. But see People v. Jlarman, 2 Sw. 576. It follows from the general rules of estoppel, that the proceed- ings of a Surrogate having jurisdiction cannot be questioned collaterally. Jenkins v. Eohinson, 4 Wend. 436 ; Bensen v. Manhattan E. Co., 14 App. Div. 442. In this case the Ap- pellate Division of the First Department (opinions by O'Brien and Ingraham, JJ.) passed upon the power of the Surrogate of Xew York County in probate proceedings to determine in certain cases the validity of testamentary dispositions affecting real estate, as defined by section 11 of chapter 359 of the Laws of 1870. The question before the court was whether under a fair construction of that act the Surrogate had jurisdiction to make a binding decree in reference to such testamentary dispo- sitions. It appeared that the Surrogate under the act was requested by the heirs at law to determine the validity of cer- tain devises or bequests under the will of the testatrix. The court held first, that the language of the act was broad enough to show a legislative intent to confer upon the Surrogate juris- diction upon the probate of the will to determine the validity of the devises or bequests which were assailed by the heirs at law. Second, that by submitting to the Surrogate the deter- mination of these questions the heirs at law should be held to "have waived their constitutional right to have the question of title tried by a jury. And in the third place, although it might appear, that had the decree of the Surrogate been appealed from it might have been modifi.ed or reversed, nevertheless having been made in a proceeding to which the heirs at law were par- ties, it was binding and could not be collaterally attacked. To same effect Brown v. Zanden, 30 Hun, 57, affirmed in 98 N. Y. 634 ; Eoderigas v. E. E. Sav. Inst., 63 N. Y. 460 ; Sam.e v. Same, 76 N. Y. 316 ; Parham v. Moran, 4 Hun, 717. The gen- eral rule in this regard was stated by Marcy, J., in Johnson v. Eohinson, 4 Wend. 437, 441. " However extraordinary or erroneous be the determination and proceedings of a court ol' limited authority, if it acts within its proper jurisdiction as to the subject-matter, place and person, its judgment or decree cannot be impeached or invalidated in a collateral action." So also if a decree be acquiesced in by the parties for a long time (as four years) it will not be disturbed in the absence of fraud. DECREES AND OftDBRS. 183 Matter v. Waack^ 5 N. Y. Supp. 522. The rule is now defined by statute. Where the jurisdiction of a surrogate's court to make, in a case specified in the last section, a decree or other deter- mination, is drawn in question collaterally, and the necessary parties were duly cited or appeared, the jurisdiction is pre- sumptively, and, in the absence of fraud or collusion, con- clusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the surrogate's court. The fact that the parties were duly cited is presumptively proved, by a recital to that effect in the decree. § 3473, Code Civil Proc. See L. 1870, ch. 359, § 1. But see People v. Harman, 2 Sw. 576, holding that recital of jurisdictional facts in the decree raised no presumption (this was before the enactment of this section). Attack in collateral proceedings is limited to the jurisdiction of the Surrogate to make the decree. See Dahin v. Hudson, 6 Cowen, 221. Stat- utory changes in the power of the Surrogate have no ex post facto operation ; so, where a Surrogate in New York County prior to 1880 adjudicated in his decree admitting a will to pro- bate upon the validity of a disposition of real estate in said will, acting under authority of section 11 of chapter 359 of the Laws of 1870, the Appellate Division held that such a decree could not be attacked collaterally. Bensenv. Manhattan E. Co., 14 App. Div. 442. See also as to conclusiveness of a decree, People V. Townsend, 37 Barb. 520 ; Curtis v. Williams, 3 Dem. 63 ; Matter of Kranz, 41 Hun, 463 ; Newcome v. St. Peters Church, 2 Sand. Ch. 636 ; Saoffield v. Churchill, 72 N. Y. 565 ; Qeroiild v. Wilson, 81 N. Y. 573 ; Wetmore v. Parker, 52 N". Y. 450; Matter of Harvey, 3 Eedf. 214; Leonard v. Columbia S. N. Co., 84 E. Y. 48, 55. In C Connor v. Huggins, 113 N. Y. 511, the Court of Ap- peals summarizes the rule as to the conclusiveness of Surro- gate's decrees in the following language : "The record shows that the necessary facts were alleged, upon which the Surrogate acted in granting them. His deter- mination upon the proof cannot be disturbed by an attack upon its correctness, in a collateral proceeding. Surrogates' Courts, IS-i surrogates' GOUKTtJ. though established as courts of special and limited jurisdiction, have possessed the general and exclusive jurisdiction to order the administration upon the estates of deceased persons, and, where jurisdiction to act exists, their orders and decrees are made conclusive until thej are revoked, or reversed on appeal. 2 E. S. 80, sec. 56. That conclusiveness attaches in a case where a jurisdictional fact is in question, and it then appears that there was proof with respect to its existence, upon which the Surrogate decided. His adjudication, in the exercise of his general and conclusive jurisdiction, where jurisdictional facts necessary to the possession of that jurisdiction, appear to have been alleged, and when the necessary parties have been duly cited to appear before him, is not thereafter open to collateral attack. Power to affect the adjudication resides in the court which made it, and in the court to which it may be appealed ; but otherwise it is not open for question. This principle, of course, in its application to other parties affected, implies the absence of fraud, or collusion. (See Fulton v. Whitney, 6 Hun, 22; Matter of Hardenburg, 85 Plun, 580 ; Kingsland v. Murray, 133 N. Y. 170 ; Burger v. Burger, 111 N. Y. 523. This power prior to the adoption of the Code was possessed by the Court of Ap- peals as well. Rohinson v. Ray nor, 28 N". Y. 494, 496, opin- ion of Selden, J., citing Schenck v. Dart, 22 IST. Y. 420 ; Gau- jolle v. Ferrie, 23 N. Y. 90 ; Moore v. Moore, 21 How. Pr. 211. See also Howland v. Taylor, 53 IST. Y. 627; Kyle v. Kyle, 67 N. Y. 400, 408 ; Hewlett v. Elraer, 103 N. Y. 156, 163. But under the present limitations of the jurisdiction of the Court of Appeals this is no longer so. § 190, Code Civ. Proc. The Appellate Division may review discretionary orders of the Surrogate, but will not disturb his determinations un- less there be an abuse of his discretion. Matter of Goundrys Estate, 57 App. Div. 232. Discretionary orders are not appeal- able to the Court of Appeals. Matter of Baldwin, 158 N. Y. 713 ; ante, p. 234. § 15. Appeals, how taken. — Section 2574 provides : An appeal must be taken by the service, within the state, upon each party to the special proceeding, other than the appellant, and upon the surrogate, or the clerk of the surro- gate's court, of a written notice, referring to the decree or order appealed from, and stating that the appeUant appeals from the same, or from a specified part thereof. "Where a party to the special proceeding in the court below appeared in person, the notice of appeal must be personally served upon him ; where he appeared by an attorney, it must be served personally, either upon him or upon his attorney. When a party, who was duly cited, did not appear in the sui'- rogate's coiu-t, notice of appeal must be served upon him per- sonally, if he can, with due diligence, be found within the county ; otherwise it may be served by depositing it, indorsed with a direction to the party, with the surrogate, or the clerk of the surrogate's court. "Where a person to be served can- not, with due diligence, be found, to make personal service 16 242 STTBKOGATES' COITETS. upon him, as prescribed in this section, the surrogate, or a justice of the supreme court, may, by order, prescribe such a mode of service as he thinks proper ; and service in that mode has the same effect as personal service. § 3574, Code Civil Proc. The notice of appeal, as has been already noted in another connection, need not be as specific as exceptions are required to be ; it need not state the grounds of appeal {Matter of Stew- art, 135 N. Y. 413) ; but need only to refer to the decree or order appealed from, that is to say, to describe it with sufficient particularity as to its date of entry, title and effect. It is only requisite that the notice of appeal should contain a definite statement that the appellant appeals from a specific order or decree or a specific part thereof. So it has been held that notices of appeal from Surrogate's orders and decrees will be liberally construed {Matter of Lawson, 42 App. Div. 377, 342), calling attention to the fact that sections 2571 and 2545 are not so exacting as section 1301. Surrogate's Court, County of Notice of ap- „.., ) peal. Title. ^ Please take notice that (specifying status of appellant in proceeding in which the order or decree appealed from was made) ap- peals to the Appellate Division of the Supreme Court in the department, from the decree {or from the order) made by the Surrogate of the county of and entered in his office on the day of 18 and from each and every part thereof. {If only part of the decree is appealed from specify the piurport of that part of the order or decree which is intended to be ap- pealed from^ (Date.) (Signature.) Attorney for (add address.) To: (Here insert name of Surrogate of the county and name or names of attorneys for aU the par- ties to the proceeding.) APPEALS FEOM DECREES AND ORDERS. 243 § 16. What is brought up by appeal. An appeal from a decree or order of the Surrogate's Court brings up for review by each com-t to which the appeal is carried, each decision to which an exception is duly taken by the appellant. § 3545, Code Civil Proc. This implies however that there shall be a case containing the evidence incorporating the findings of fact and conclusions of law with the exceptions thereto. So, where there was no case made and settled and no record of any exceptions, it was held that an appeal brought up nothing for review. Matter of Potter, 32 Hun, 599. And where there had been findings of fact and exceptions but no case on appeal had been made and settled, it was held that the mere fact that these findings and exceptions were mentioned in the notice of appeal would not entitle the appellant to a review thereof in the Appellate Court. Matter of Clarlc, 34 IST. Y. St. Rep. 523. See also Waldo v. Waldo, 32 Hun, 251 ; Burger v. Burger, 111 N". Y. 523, limit- ing Angevine v. Jackson, 103 N. Y. 470 ; Matter of Kellogg, 104 N. Y. 648. So the Court of Appeals held {Matter of Spragite, 125 N. Y. 732), that where no findings had been made and the case on appeal contained no exceptions, neither the General Term nor the Court of Appeals, had any power to re- view the Surrogate's decision on the facts. But in a case where the respondent having omitted findings of fact in the entry of his decree argued an appeal upon the merits, it was held he could not set up such omission and demand a reargu- ment on the ground that no findings were made. Matter of Patterson, 16 N. Y. Supp. 146 ; Matter ofBradway, 74 Hun, 630 ; Matter of Falls, '2,9 'S. Y. St. Rep. 759; Matter of Kavf man, 39 N. Y. St. Rep. 236. See Matter of Widmayer, 52 App. Div. 301. In this last case it was found that the Surrogate had not made any decision under section 2545, and accordingly the case was sent back to the Surrogate for compliance with the statute, following Matter of Peek, 60 Hun, 583. § 17. Appeal to Court of Appeals. — (See sections 8-9 above.) Where the Appellate Division reverses a Surrogate's decree upon questions of law only, an appeal may be taken to the Court of Appeals from its decision. Kingsland v. Murray, 133 N. Y. 170, 177. Where the evidence is conflicting, or where it is of 244 surrogates' courts. such a nature that diverse inferences may be drawn therefrom, the decisions of the Appellate Division upon questions of fact cannot be reviewed in the Court of Appeals. Matter of Ross, 87 K Y. 514. Section 1337 of the Code provides that a ques- tion of fact arising upon conflicting evidence cannot be deter- mined upon an appeal to the Court of Appeals, unless where special provision for the determination thereof is made by law. No special provision is found ia the Code authorizing a review in the Court of Appeals of a question of fact in any special proceeding or upon any appeal from the Surrogate's Court. Eingsland v.Murray, supra, opinion of Earl, Ch. J., at page 178. § 18. Reversal. — Generally where the Surrogate's decree is a determination upon a disputed question of fact and upon con- flicting evidence, the Appellate Division will decline to disturb his decision upon appeal. See Matter of Clark, 82 Hun, 344. But under the power which the court has to decide all ques- tions of fact which the Surrogate had under section 2586 (see Matter of Rogers, 10 App. Div. 593, 594, and cases cited), if they are satisfied that the evidence contained in the case on appeal is not merely conflicting, but is such as would warrant a jury in arriving at a verdict contrary to the decision of the Sur- rogate, the Appellate Division will reverse the decree of the Surrogate and order a trial of the issues of the specific questions of fact involved. Matter of Brunor, 21 App. Div. 259, 263, 265 ; Matter of Van Houten, 11 App. Div. 208 ; Howland v. TayUr, 53 N. Y. 627. § 19. Same subject. — A decree or order of the Surrogate's Court, " shall not be reversed for an error in admitting or reject- ing evidence, unless it appear to the Appellate Court that the exceptant was necessarily prejudiced thereby" (section 2545 of the Code of Civil Procedure) ; therefore, where the Appellate Court is satisfied that while the evidence admitted or rejected was improperly admitted or rejected, yet the court could inde- pendently of such evidence have justly arrived at the conclusion that it did, the error may be disregarded. The effect of the section is to leave the Appellate Court at libert}' to disregard the error if it could have had no influence on the determination of the case. Matter of Miner, 146 IST. Y. 121, 136 ; Matter of Crane, 68 App. Div. 355, 357, citing, Matter of Rogers, 10 App. Div. 593 ; Matter of Welling, 51 App. Div. 355. If the judgment is clearly right notwithstanding the error, it is no APPEALS FROM DECREES AND ORDERS. 245 ground for reversal. Loder v. Whelpley, 111 K". Y. 239, 246. The courts in applying this rule under section 2545 have held that to justify a reversal it must appear, either, that had the evidence which was rejected been received, the appellant's case would not have failed, or that without the improper evidence which was received, the respondent's case was deficient. Mat- ter of Seagrist, 1 App. Div. 615, opinion of Eumsey, J., citing Snyder v. Sherman, 88 IST. Y. 656 ; Matter of Miner, supra. § 20. Same subject.,— It is, however, the duty of the Appel- late Court to determine whether or not the error was prej- udicial; this inquiry is necessarily affected by the question whether the specific evidence was admitted improperly or re- jected improperly. Where a Surrogate, on the trial of an issue of fact, receives incompetent evidence, the case is different from an error of the Surrogate in rejecting competent testimony. In the former case the evidence improperly received is before the court, and it may appear that, although the Surrogate has erred in admit- ting it, yet the error did no harm, because the fact to which such incompetent testimony related was clearly proved by other competent evidence. Thus in the case of Loder v. Whelpley et al., Ill N. Y. 239, incompetent evidence was received. The Court of Appeals determined that this error afforded no ground for a reversal of the decree, because the Surrogate, in his opin- ion, which was incorporated in and formed a part of his deci- sion, stated that he had disregarded the incompetent evidence, and also because the decision of the Surrogate's Court was jus- tified " by testimony which leaves no doubt of its correctness, and leaving out all the evidence objected to by the contestant, the same result, and that only, could be reached." The court in the case cited determined that if a decree of the Surrogate was clearly right, notwithstanding an error in receiving incom- petent testimony, such error is no ground for a reversal. See Matter of Benton, 71 App. Div. 522, 524. But the case is different where a Surrogate errs in rejecting competent and material testimony. It is impossible to deter- mine what effect such testimony, if received, would have had on the decision of the question of fact before the Surrogate. A party offering competent and material testimony is necessarily prejudiced by its exclusion ; he is entitled to have such evidence considered by the Surrogate ; if received it might affect the 246 ' SURBOGATES' COTTRTS. result ; he is injured by its exclusion. The true rule as to the construction that should be given to section 2545 of the Code of Civil Procedure is stated by Andrews, J., in The Mat- ter of the Will of Smith, 95 JST. Y. 516, 527, 528, as follows: " Under this section, when the court of review finds that in- competent evidence has been received, or competent evidence rejected, it then becomes its duty to determine whether the error prejudiced the party against whom it was committed. If it appears to the court that it did not, then its dut\' is plain. If, on the other hand, the evidence erroneously admitted or rejected was important and material, and the court cannot say that, notwithstanding the error, the judgment is right, or if it entertains a reasonable doubt upon the subject, then we con- ceive a case is presented where the party excepting was neces- sarily prejudiced within this section." Matter of Potter, 17 App. Div. 267 ; Copland v. Van Alst,9 Weekly Digest, 407; Jlorn V. Pullman, 72 N. Y. 269 ; Matter of Morgan, 104 N. Y. 74, 86 ; Brick v. Brick, 66 N. Y. 144. § 21. Same subject — Where, on the probate of a will, per- sons whose testimony is made inadmissible by section 829 of the Code are allowed to testify, unless the Appellate Court is able to say with certainty that the evidence was without in- fluence upon the result (as, for example, where other witnesses testif}'' independently, substantially and conclusively to the same facts), it will be proper ground for reversal. Sohoon- maker v. Wolford, 20 Hun, 166,168, citing Foote v. Beecher, 78 X. Y. 155. By conclusive evidence however is meant in this connection such evidence as is capable of but one construc- tion and incapable of being answered. In this sense if the in- competent evidence was slight or irrelevant, or if, without it, the fact is conclusively established by other evidence, the Ap- pellate Court will disregard it because it could not have in- jured the other party {Foote v. Beecher, Church, Ch. J.), or could not legitimately affect the result. Hohart v. Hohart, 62 N. Y. 84; Matter of Torkington, 79 Hun, 118; Matter of Degen, 89 Hun, 143 ; Petrie v. Petrie, 126 N. Y. 683. But if evidence be improperly excluded in the erroneous belief that section 829 is applicable, it is reversible error. In such case it is not necsssary that the appellant should have made an " offer " of the testimon}^ sought to be introduced. Matter of Potter, 161 N. Y. 84, 88. APPEALS FBOM DECKEES AND ORDERS. 247 § 22. Perfecting appeal. To render a notice of appeal effectual for any purpose, except in a case specified in the next section, or where it is specially prescribed by law, that security is not necessary to perfect the appeal, the appellant must give a written under- taking, with at least two sureties, to the effect that the appel- lant wUl pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty doUars. § 2577, Code Civil Proc. Surrogate's Court, County of Undertaking' on \ appeal. Title. >■ Whereas, on the day of 18 a decree was made in the above entitled proceed- ing by the Surrogate of the county of adjudging or decreeing (here state purport of decree concisely) ; Whereas, (here state status of party in proceeding) feeling aggrieved thereby, intends to appeal therefrom to the appellate division of the Supreme Court, in the department ; Now therefore, we, A. B. of by occu- pation (a merchant), and C. D. of by occupation (a banker), do hereby jointly and sev- erally undertake that the appellant will pay all costs and damages which may be awarded against him on said appeal, not exceeding $250. Whei-e undertaking is on appeal from, a decree directing payment of money, substitute for the foregoing paragraph, after the names and resi- dences and occupations of the sureties, hereby jointly and severally undertake, to and with the People of the State of New York, in the sum of dollars, that if the said decree is af- firmed in whole or in part, or the appeal is dis- missed, the said appellant will pay {or, deposit, {or distribute) the sum of money directed to be paid {or deposited, or distributed) by said de- cree, or such part thereof as the said decree if 248 surrogates' couktS. Note. The affi- davit of suffi- ciency, is required only when it is in- tended by the un- dertaking to stay the execution of a decree, in which case the under- taking should also be indorsed with the approval of the Surrogate, the date of such ap- proval being indi- cated. afiSrmed may direct . {or, in a proper case, sdy, ■will deliver the property directed to be delivered by said decree), and that the appellant will pay all the costs and damages which may be awarded against him on such appeal. (Date.) (Signature.) Note. The un- dertaking must be ackuowledged by each surety. {Note.) Add also affidavit of suflSciency, as follows : State of New York ) County of ( ®^- ' being duly sworn deposes and says : that he is one of the sureties named in the foregoing undertaking ; that he resides in county of State of New York ; that he is a holder; and that he owns property consisting of in the county of and State of that the same is of the net value of not less than dollars and unincumbered except as follows : that he is not upon any bond, undertaking or written obligations whatever,- except as follows: that he is worth in good property in the State of New York not less than dollars over and above all debts, liabilities and lawful claims against him and all liens and incumbrances and lawful claims upon his property.. Sworn to before me this ) day of 18 J Surety. {Note.) Section 2577 is general in its operation, and fixes the charac- ter of the security which must be given to perfect any appeal, except such as are expressly provided for. The stay which it is desired to secure pending any appeal is given, not by virtue of this section, but by virtue of section 2584, which is as fol- lows : Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as a stay of the proceedings APPEALS PKOM DECREES ANt) ORDERS. 249 to enforce the decree or order appealed from, prescribed in section 1310 of this act, with respect to a perfected appeal from a judgment. § 3584, Code Civil Proc. This assumes that the appeal is by one entitled to appeal. An appeal improperly taken cannot so operate. Matter of Evans, 33 Misc. 671. The sections referred to in section 2584 are 2578, 2579 and 2583, which will be discussed separately. The effect, there- fore, of perfected appeals generally under sections 2577 and 2584 is the same as the effect of a perfected appeal under sec- tion 1310 which provides that where an appeal is perfected as prescribed in chapter 12, "the appeal stays all proceedings to enforce the judgment or order appealed from, except that the court or judge from whose determination the appeal is taken may proceed in any matter included in the action or special proceeding, and not affected by the judgment or order ap- pealed from or not embraced within the appeal." Consequently where a Surrogate in probate proceedings de- nies a motion for a commission, an appeal from his order does not stay the probate proceedings. Estate of Henry, 4 Dem. 253. Nor would an appeal from an order denying a union of issues previously directed to be separately tried stay the pro- bate proceedings. Such orders merely affect modes of pro- cedure that are entirely within the control of the trial court. Matter of Henry, supra, citing Arthur v. Orisioold, 60 N. T. 143 ; Whitney v. Townsend, 67 N. Y. 40 ; Miller v. Porter, 17 How. Pr. 526. On the other hand, if a Surrogate makes an order granting an application for the issuance of a commission to take testi- mony without the State, a perfected appeal from such order would stay the issuance of such commission. Matter of Henry, opinion of Rollins, Surr., at page 264. There is no provision for any other undertaking upon appeal except that required by section 2578, where some appointee of the Surrogate's Court, such as an executor, administrator, testamentary trustee or guardian, appeals from a decree re- quiring him to pay, distribute or deposit money, or to deliver property, or where an executor or administrator appeals from an order granting leave to issue execution against him; in such oases, in addition to the undertaking for costs and dam- 250 STJKROGATES' COtTBTS. ages, there must be a further undertaking as required by the -section which follows : Notice of appeal by an executor, administrator, testamen- tary trustee, guardian, or other person appointed by the sur- gate's court, from a decree, directing him to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property ; or by an executor or administrator from an order granting leave to issue an execution against him, as prescribed in section 1825 of this act, does not stay the exe- cution of the decree appealed from, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that, if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the ap- pellant will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sura so directed to be paid or collected, or, as the case requires, will deposit or distribute the money, or deliver the property so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed. § 3578, Code Civil Proc. § 23. Section 2578 requires two undertakings to effect a stay. — It must be distinctly borne in mind that the undertak- ing specified in section 2578 that the appellant will pay the sum directed to be paid or collected, or deposit or distribute the money, or deliver the property, is not sufficient of itself to stay the decree unless the undertaking to pay all costs and damages required by section 2577 is also given. Matter of Whitmarh, 15 K Y. St. Kep. 745. Where an executor, how- ever, is mentioned in the will as a legatee and he takes an ap- peal from the decree of the Surrogate which declares his legacy void, the fact that he is an executor does not require the double undertaking contemplated by section 2578, for his appeal is an individual appeal, and the single undertaking under section 2577 will be deemed sufficient. Du Bois v. Brown, 1 Dem. 317, 334, Coffin, Surr. Unless, then, the appeal is by an executor, ad- ministrator, testamentary trustee, guardian, or other person appointed by the Surrogate's Court, no undertaking can be re- quired except the one for $250 required by section 2577, and the giving of that undertaking perfects the appeal. Matter of ArTceriburgh, 17 Misc. 543, Tompkins, Surr., affirmed on Surro- gate's opinion in 11 App. Div. 44, 45. APPEALS FEOM DECREES AND ORDERS. 251 24. Contempt cases. Security to stay proceedings in case of commitment. An appeal from a decree or an order, directing the com- mitment of an executor, administrator, testamentary trustee, guardian, or otlier person appointed by tiie surrogate's court, or an attorney or counsel employed therein, for disobedience to a direction of the surrogate, or for neglect of duty ; or directing the commitment of a person refusing to obey a sub- poena, or to testify, when required according to law ; does not stay the execution of the decree or order appealed from, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that, if the decree or order appealed from, or any part thereof, is af- firmed, or the appeal is dismissed, the appellant wUl, within twenty days after the affirmance or dismissal, surrender him- self, in obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to be com- mitted. If the undertaking is broken, it may be prosecuted in the same manner, and with the same effect, as an admin- istrator's official bond ; and the proceeds of the action must be paid or distributed, as directed by the surrogate, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them ; and the balance, if any, must be paid into the county treasm-y. § 3579, Code Civil Proc. Note. Fo How same rules as to signature, ac- knowledgment, of- (Note.) Jidavit of suffi- ciency and approv- al by the court. Where an undertaking is required under sec- tion 2579 to stay proceedings pending appeal in case of commitment^ follow the foregoing form up to and including the names, residences and occu- pations of the sureties, and then continue : hereby jointly and severally undertake that if the decree (or order) appealed from or any part thereof is aflSrmed or the appeal is dismissed, the appellant will within twenty days after such affirmance or dismissal surrender himself in obedience to such decree (or order) to the custody of the sheriff of the county of whereto by such decree he is directed to be committed. 262 SXTRKOGATES' COUKl:S. The language of this section may be confusing because it contains no explicit provision for an undertaking for costs. It has been held, however, that when an appeal is taken from an order of commitment by the Surrogate for disobedience to a di- rection of such Surrogate, or for neglect of duty by an executor, administrator, testamentary trustee, guardian or other person appointed by the Surrogate's Court or by some attorney or counsel employed therein, a stay of the execution of such an or- der will be effected by giving the security provided by section 2579. Matter of Pye, 21 App. Div. 266, Hatch, j! But it was further held that, if the appeal was prosecuted to the Court of Appeals, in order to secure a stay, such second appeal must be perfected under section 1326. But when the appeal to the Court of Appeals is perfected by the giving of an under- taking to the effect that the appellant will pay all costs and damages not exceeding $500, which may be awarded against him on the appeal, then under section 1310, q. v., the appeal operates as a stay. And it was held in the case just cited that the Supreme Court had power to grant a stay of proceedings upon an appeal from an order made in a Surro- gate's Court ; the order in such case being conditioned on the giving by the appellant of the security required by section 1326. It was further held that the undertaking given under section 25T9 remained in force unaffected by the appeal to the Court of Appeals and was a continuing security for compliance with the decree of the Surrogate, and that no further security was required to be given so long as it remained in force. J udge Hatch added : " It is quite evident therefore that the appel- lant had complied with all the provisions of law necessary to perfect his appeal except the giving of the undertaking for security for costs ; when this Avas done, it, together with the appeal, operated as a stay of proceedings upon the decree ap- pealed from until disposition was made by the Court of Ap- peals. No order was therefore necessary except for leave to file the security to stay proceedings upon the decree upon filing the required undertaking for costs. See page 268. See also Matter of Oihon, 29 Misc. 273, where Surrogate Silk- man summarizes the practice, and holds that a duly per- fected appeal by a contestant of a will stays issuance of letters testamentary, unless the Surrogate deems it necessary to issue them under section 2582 (see p. %?>^,post) for the pres- APPEALS FROM DECREES AND ORDERS. 253 ervation of the estate. (A.ffirraed 48 App. Div. 598, on opin- ion below). § 25. Appeal by one of several parties, not necessarily a stay as to all. — Where there are a number of parties in interest and they do not all appeal, an appeal by one will not necessarily stay the execution of the decree where the appellant's rights are clearly separable from those of the other parties to the pro- ceeding and can be protected, as by a deposit of money cover- ing his interest pending the appeal. So where one of several residuary legatees under a will, that has been declared invalid, appeals from the decree directing distribution to the next of kin, the perfected appeal will only operate to prevent the execution of the decree so far as is necessary to protect his interests. KavanagKs Estate, 9 N. Y. Supp. 443, Eansom, Surr. In this case the court made the following direction : " The executor should set aside a sura suiRcient to provide for a possible rever- sal on appeal and then proceed to carry out the directions of the decree so far as the same will not be affected by the suc- cess of the appellant." § 26. Certain appeals not to stay execution of order or decree appealed from. — It is expressly provided by sec- tion 2583 that. An appeal from a decree revoking the probate of a will, or revoking letters testamentary, letters of administration, or letters of guardianship ; or from a decree or an order, sus- pending an executor, administrator, or guardian, or removing or suspending a testamentary trustee, or a freeholder, ap- pointed to execute a decree, as prescribed in title flftli of this chapter, or appointing a temporary administrator, or an appraiser of personal property, does not stay the execution of the decree or order appealed from. § JJ583, Code Civil Proc. It has been held that no stay can be secured under the decrees specified in this section, although the security provided by sec- tion 2577 has been given. In such cases while the undertaking for $250 must be given in order to perfect the appeal it does not operate as a stay as contemplated by section 2584, which commences " except as otherwise expressly prescribed in this article." See Fernhacher v. Femhacher, 4 Dem. 227, EoUins, Surr. In the case last cited the learned Surrogate held asfol- 264 surrogates' coxtrts. lows : " Upon careful examination of the various provisions of art. 4, tit. 2, ch. 18 of the Code of Civil Procedure, I am con- vinced that the operation of the decree removing the executors and trustees cannot be prevented by appeal ; and that to make an appeal otherwise effectual, it is only necessarj'^ to give an undertaking, under section 2577, in the sum of $240. Sec- tion 2584 provides that a perfected appeal shall operate as a stay, 'except as otherwise expressly prescribed in this article.' " Now, it is, among other things, expressly prescribed, in section 2583, that an appeal from a decree suspending an exec- utor, or removing or suspending a testamentary trustee, ' does not stay the execution of the decree or order appealed from.' " Sections 2578 and 2579 make special provision for the exact- ing of extraordinary security in the cases in such sections re- ferred to, and section 2580 indicates the mode of ascertaining the amount of the security to be exacted in those cases, and in those cases only. In the third paragraph of that section, which begins with the words, " In every other case it must be fixed by the Surrogate," the word it refers, not generally to " the sum specified in an undertaking," but particvZarly to "the sum specified in an undertaking executed as prescribed in either of the last two sections " (§§ 2578, 2579). " In the cases provided for in sections 2578 and 2579, the ap- peal is perfected by giving the special security, and thereupon proceedings are stayed by the operation of section 2584. In the cases for which section 2583 makes provision though the appeal is not effectual for any purpose until the $250 under- taking has been given, there is no provision for exacting or accepting any other undertaking than that, and the giving of that does not effectuate a stay." A distinction has however been drawn between cases where there is a final order or decree revoking letters and the cases where by an intermediate order an executor or administrator is directed to do some particular act within a given time in default of which the order provides that the letters shall be revoked and annulled. If within the time limited by the order the executor or administrator appeals and perfects his appeal by filing the undertaking required by section 2577, no decree having actually been made revoking his letters, and the order appealed from being incapable of operat- ing to revoke them, at any rate until the time therein limited shall have expired, such appeal stays the operation of the order, APPEALS FROM DECREES AND ORDERS. 255 in which case a decree revoking the letters cannot be entered. Halsey v. Halsey^ 3 Dera. 196, Rollins, Surr. In the case just cited the learned Surrogate, upon an application made to hini after the twenty days had expired (the executor having failed to comply with the order but having perfected his appeal to tlie Supreme Court), asking that a decree absolute be made revoking the letters of the disobedient executor, held that he could not in any event make such a decree because either the order already entered operated as a decree, in which case no further decree was necessary, or the perfecting of the appeal by the executor stayed all the proceedings and prevented the entry of the de- cree sought to be entered. § 27. Appeal from probate decree — Limited effect.— In order that the administrator of an estate may not be inju- riously affected by litigation, it is expressly provided by statute that, where a decree grants probate, or directs the issuance of letters testamentary, or letters of administration, the perfect- ing of an appeal from such a decree shall have only a limited effect. The section is carefully devised and contemplates merely the safeguarding of the property by the executor or administrator and is as follows : An appeal from a decree of a surrogate, admitting a will to probate, or granting letters testamentary, or letters of ad- ministration, (or from an order or judgment of the appellate division of the supreme court affirming a decree of the sur- rogate admitting a will to probate, or granting letters testa- mentary, or letters of administration,) does not stay the issu- ing of letters, where, in the opinion of the surrogate, manifested by an order, the preservation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to aU the duties and liabilities of an executor or administrator in an ordinary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or satisfy a legacy, or to distribute the unbequeathed property of the decedent, until after the final determination of the appeal. And in case letters shall have been issued before such appeal, the executor or administrator, on a Uke order of the surrogate, may exercise the power and authority, subject to the duties, liabilities, and exceptions above provided. § 3583, Code Civil Proc. 256 surrogates' courts. [Clause in brackets is an amendment of 1900, after decision in Matter of Glhon, 48 App. Div. 598, affli-ming Surrogate Silkman's decision tliat section 2582 applied to appeals to the court of ap- peals as well as to appeals to the appellate division, 29 Misc. 273.] "While the object of this section is to preserve the estate for the benefit of the persons legally entitled thereto, there is no power in the Surrogate to authorize the executor or adminis- trator to make expenditures, other than such as are necessary to conserve the estate ; and so he cannot authorize the executors to disburse moneys in defense of the proceedings in the Appel- late Court. Swenarton V. Hancock, 22 Han, 4:3, 4:6. However, reasonable expenses incurred by such administrator in sustain- ing the decree may be paid, and if the decree is sustained upon appeal will doubtless be eventually allowed upon the account- ing. In the absence, however, of an order by the Surrogate directing letters to issue upon the ground that the preservation of the estate requires this to be done, the appeal does operate as a stay. Matte?' of Place, 5 Dem. 228, Rollins, Surr. And although letters issued before such appeal, the appeal will operate as a stay until the making of an order by the Surro- gate manifesting his opinion that the preservation of the es- tate demands the exercise by the executor or administrator of the limited authority provided by section 2582. If he refuse such an order, it will be on the ground that the preservation of the estate does not at the time require it. Matter of Gi/ion, 48 App. Div. 598. In this case such an application was at first refused, but later it was granted in order to ensure the sale of securities of fluctuating value, and the investment of the proceeds. It was held that such investment could not well be done by a temporary administrator, as the executors under the Avill were given such discretion. This limited power will continue until a final determination of the issue raised by the appeal, that is to say, until the Surrogate shall revoke the probate or letters and the decree of revocation is served upon the executor or administrator with notice of entry. See Thompson v. Traoi/, 60 N. Y. 174 ; Matter of Voorhis, 1 N. Y. St. Eep. 306 ; Bible Society v. OaUey, 4 Dem. 450. § 28. Limitations of executor's power specified. — It is further to be noted that the executor or administrator is limited in his powers under his letters only by the express ex- ceptions noted in section 2582 which are three : («) he may APPEALS FROM DECREES AND ORDERS. 257 not sell real property by virtue of a provision in the will, (5) he may not pay or satisfy a legacy, (c) he may not distri- bute unbequeathed property of the decedent. These limits are the same as those fixed by chapter 603 of the Laws of 1871, which was in operation prior to the Code, which act was construed by the Court of Appeals in Thomp- son V. Tracy, 60 Hun, 174, 177, Eapallo, J., where the court uses the following language : "It will be observed that the only limitations upon the powers of executors to whom letters are issued under this act are, that they shall not pay legacies, sell real estate, or dis- tribute the effects of the testator. It is for the Surrogate to determine whether, in his opinion, the protection and preserva- tion of the estate require the issuing of such letters. His de- termination of that question is a necessary preliminary. It is a consideration to guide him in deciding whether or not to issue the letters, but not a limitation upon the powers of the executors. "When the letters are granted they possess all the powers and are subject to all the duties and liabilities of exec- utors, except as expressly restricted in the then specified par- ticulars." It was accordingly held, the contention having been made that the prohibition of the statute was against distributing the effects of the testator even to creditors, that there was noth- ing in the act preventing creditors from establishing their claims by prosecuting them to judgment against the executor during the pendency of the litigation. And moreover the court held that it was not the intention of the act to interfere with the payment of debts during the litigation for the reason that the rights of a creditor could not be affected by the de- termination of the controversy as to the will one way or the other ; their rights being independent of the will, and superior to those of persons claiming under or contesting it. § 29. Formalities of undertaking. — Sections 2580 and 2581 relate to the form and the amount of the undertaking required to be given on appeal from a Surrogate's decree. Section 2580 is as follows : Amount of undertaking ; how fixed. The sum specified in an undertaking, executed as described in either of the last two sections, must, where the appeal is 17 258 surrogates' courts. taken from a decree directing the payment, depositing, or distribution of money, be not less than twice the sum directed to be paid, deposited or distributed. Where the appeal is taken from an order granting leave to issue an execution, it must be not less than twice the sum, to collect which the execution may issue. In every other ease, it must be fixed by the surrogate, or by a judge of the appellate court, who may require proof, by affidavit, of the value of any property, or of such other facts as he deems proper. The respondent may apply to the appellate court, upon notice, for an order requiring the appellant to increase the sum so fixed. If such an order is granted, and the appellant makes default in giv- ing the new undertaking, the appeal may be dismissed or the stay dissolved, as the case requires. § S580, Cod© Civil Proc. But section 2580 refers only to appeals taken by the persons described in the two sections preceding, that is to say, an exec- utor, administrator, testamentary trustee, guardian, or some other person appointed by the Surrogate's Court (or, in con- tempt cases, including attorney or counsel). In all cases other than those covered by sections 2578 and 2579, the security to perfect the appeal is only required to be an undertaking for $250. Matter of Arlcenlurg, No. 1, 11 App. Div. 44, affirming 17 Misc. 543, on opinion of Tompkins, Surr. This was a case where a decree had been made settling the account of certain executors ; some of the legatees appealed, the executor although a legatee under the will did not appeal, the appellants gave an undertaking for $250 to perfect their appeal. Thereafter the executor moved for distribution under the decree unless a proper undertaking should be given to stay the execution and enforcement of the decree. The learned Surrogate, whose opin- ion vras adopted by the Appellate Division in deciding the case, says : The question is : " Does the undertaking already given ef- fect a stay ? " Section 2577 of the Code provides for the undertaking which has been given and 'which is necessary to render the appeal effectual. " The only other undertaking provided for on an appeal from a decree of the Surrogate's Court is in cases of appeals by exec- utors, administrators, trustees, guardians or other persons ap- APPEALS PEOM DECREES AND OBDEKS. 259 pointed by the Surrogate's Court. Then to stay the enforce- ment of the decree there must be an additional undertaking. " Counsel for the executor and the motion insists that sec- tion 2580 gives the Surrogate discretion to require an additional undertaking and fix the amount thereof ; these are the words relied upon : ' In every other case, it (the amount) must be fixed by the Surrogate, or by a judge of the Appellate Court, who may require proof,' etc. " These words, however, clearly refer to undertakings re- quired of executors, administrators, etc., and not to any other appellant. " The case of Steinhack v. Diepenbrock, 5 App. Div. 208, cited in support of the motion, is not applicable ; there the ap- peal was from a judgment of the Supreme Court. " There is authority for requiring an undertaking to indem- nify a respondent against loss and damage, in such a case, that is not found in the provisions in reference to appeals from Sur- rogates' Courts. " My conclusion is that unless the appeal is by the executor, administrator, etc., no undertaking can be required except the one for $250 required by section 25T7, and that the giving of that undertaking on his appeal perfects the appeal, and hence under section 2584 operates as a stay of proceedings to enforce the decree." § 30. Requisites of undertaking. An undertaking, given as prescribed in the last four sec- tions, must be to the people of the state ; must contain the names and residence of each of the sureties thereto ; must be approved by the surrogate or a judge of the appellate court ; and must be filed in the surrogate's office. Except as otherwise specially prescribed, the filing of a proper un- dertaking, and service of the notice of appeal, perfect the appeal. The surrogate may, at any time, in his discretion, make an order, authorizing any person aggrieved to bring an action upon the undertaking, in his own name, or in the name of the people. Where it is brought in the name of the peo- ple, the damages collected must be paid over to the surro- gate, and distributed by him, as justice requires. § 3581, Code Civil Proc. The Surrogate's Court as soon as the appeal has been perfected 260 surrogates' courts. no longer has jurisdiction over the matter involved in the ap- peal ; consequently proceedings relating to the appeal must be had in the Appellate Court, for example, the bringing in of a person not a party who is required to be a party by section 2573 {q. V.) must be done by an order of the Appellate Court, if such action is had after the appeal is taken ; in which case the Ap- pellate Court prescribes the mode of bringing in such persons b^^ publication, by personal service or otherwise. So a motion to dismiss the appeal either for the absence of necessary par- ties or for any other sufficient reason must be made in the Ap- pellate Division. Pattersmi v. Hamilton, 26 Hun, 665. The Surrogate's Court has no power to entertain the application for an order allowing the intervention of new parties on appeal; nor, where the appeal involves the whole proceed- ing (as an appeal upon a contested will) can he do anything in regard to the litigation except to conserve the estate as provided for in section 2582. Matter of Dunn, 1 Dem. 294. So, by section 2580, any application for an increase of the security given upon the appeal must be made to the Appellate Court upon notice. So, if the undertaking filed by the appellant appears to be insufficient, the Surrogate has no jurisdiction, but the proper remedy is either for the respondent to move the Appellate Court for a dismissal of the appeal, or for the appel- lant to apply to the Appellate Court for leave under section 1303 (which is made applicable to the Surrogate's Court by section 2575), to file an amended undertaking. Du Bois v. Brown, 1 Dem. 317, 334, Coffin, Surr. § 31. Appeal from verdict after trial by jury in probate cases. — Where either of the Surrogates of New York County has made an order transferring to the Supreme Court any spe- cial proceeding for the probate of a will pending before him, under section 2547, the Code makes particular provision for the manner in which such verdict is to be reviewed. Such ver- dict it is provided by section 2547 (in part) can be reviewed only by a motion for a new trial upon the minutes of the judge. Such motion must be made within ten days after the verdict is rendei-ed. A new trial may be granted upon exceptions, or because the verdict was rendered upon insufficient evidence or is against the evidence or the weight of evidence. An appeal lies to the appellate divi- APPEALS FROM DECEEKS AND ORDERS. 261 sion of the supreme court from the order granting or re- fusing a new trial. An appeal must be taken by serving written notice of appeal upon the clerk of the court, and upon the attorney for the respondent, within ten days after the ser- vice upon the attorney for the appellant of the order appealed from, and of written notice of the entry thereof. The appeal shall be heard upon a case containing all the evidence ; and an error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial may, in the discretion of the court, be disregarded if substantial jus- tice does not require that there should be a new trial. It is to be noted in this connection that while the matter transferred is pending in the court to which it is transferred or in the court to which it may be appealed, the Surrogate is only- deprived of the power to try the issues referred. His jurisdic- tion over the estate continues. Matter of Blair, 60 Hun, 523, Barrett, J. In the case just cited where a Surrogate had trans- ferred a probate proceeding to the Court of Common Pleas and an appeal had been taken from the verdict of the jury, and pend- ing t.he appeal an application was made to the Surrogate for the appointment of a temporary administrator, the General Term held as follows : " We think the Surrogate was not, by the transfer in ques- tion, divested of any of the powers conferred upon him by statute except such powers as by force of the transfer were ex- pressly conferred upon the Court of Common Pleas. He could doubtless no longer try the issues of fact arising in the special proceeding for the probate of the will. That power, by force of his order of transfer, at once became vested in the Court of Common Pleas. But that power alone was transferred, and that power alone became so vested. The transfer of such other powers as are vested by law in the Surrogate's Court, and are not necessary to the due execution of the power transferred, cannot be implied. Thus the authority of the Court of Com- mon Pleas, by force of the order of transfer, is limited to the trial of the issues of fact, and to certain appellate proceedings •which may follow. The only implied power is that which is necessary to secure a proper and adequate trial of the issues of fact, and a proper and adequate hearing thereafter of the appel- late proceedings provided for. The authority of the Court of Common Pleas under the order of transfer ends when it finally 262 SUEEOGATES' COUETS. certifies to the Surrogate's Court the verdict upon the issues of fact. If the verdict sustains the will, the latter court may then admit it to probate. The Court of Common Pleas is nowhere authorized by.section 2547 to perform that function. Under this transfer, standing alone, the Court of Common Pleas ac- quires none of the general statutory jurisdiction of a Surrogate's Court any more than would the Superior Court if section 2547 of the Code had specified that tribunal as the transferee. The application for the appointment of a temporary administrator is no part of the proceeding for the probate of the will. It is an independent proceeding for the preservation of the estate (pend- ing litigation) authorized by section 2668 of the Code of Civil Procedure, and resting in the discretion of the Surrogate. That discretion may be exercised where delay necessarily occurs in the granting of letters testamentary or letters of administration, not only in consequence of a contest with regard to the probate of a will, hut for any cause whatever. This would seem to be decisive of the present question." It was also held in the same case that the provisions in sec- tion 2547 to the effect that after the proceedings have been cer- tified back to the Surrogate's Court, " thereafter all proceedings relating to the will and to the estate of the decedent shall be had in the Surrogate's Court," was not to be taken as meaning that prior to such certification of the verdict, proceedings relat- inff to the estate of the decedent had been transferred to the Supreme or County Court, but that the expression, " the estate of the decedent," was plainly inserted for abundant caution. " It simply affirms the natural status effected by the return of the verdict to the Surrogate's Court, and places that court in precisely the same position as though the Surrogate himself had decided the contest for probate." § 32. Review of verdict after trial by jury in proceedings for sale of decedent's real estate. — Where any Surrogate in the State has made an order directing the trial by jury at a trial term of the Supreme Court to be held within his county or the County Court of the county, of any controverted question of fact arising in a special proceeding for the disposition of real property of a decedent under section 2547, the method of review differs slightly from that noted in the previous section for the review of the verdict had upon the transfer of a probate pro- ceeding to the Supreme Court, by either of the Surrogates of APPEALS FROM DECREES AND ORDERS. 263 New York County. The practice is covered by section 2548 which is as follows : Trial by jury ; how reviewed. A trial by jury pursuant to an order made in a proceed- ing for the disposition of the real property of a decedent, made as prescribed in the last section, can be reviewed in the first instance, only upon a motion for a new trial. A new trial may be granted by the surrogate or the court in which the trial took place, or, if it took place at a trial term of the supreme court by the supreme court, in a case where a new trial of specific questions of fact, tried by a jury pur- suant to an order for such trial made in an action, would be granted. The verdict of the jury must be certified to the surrogate's court by the clerk of the court in which the trial took place. § 3548, Code Civil Proc. It is to be noted in the first place that in proceedings of this character, the order for a new trial may be granted by the Sur- rogate as well as by the court empaneling the jury ; the grounds for such new trial are the same as those upon which a new trial would be granted in an action in the Supreme Court. The Surrogate of the county of Kew York has no authority under the prior section 2547 to entertain a motion for a new trial upon a verdict in a special proceeding for the probate of a will transferred to the Supreme Court. Matter of Patterson, 63 Hun, 529. The practitioner should bear in mind the distinc- tion between a trial by jury ordered by a Surrogate, and a trial by jury of issues directed by an Appellate Tribunal on an appeal from the Surrogate's decree ; and for this reason, that the motion for a new trial must be made in the court in which the proceeding is pending, that is of course, unless there is express statutory authority for making the application to any other judge or court. So in the case mentioned in section 2548, where the power to grant new trials is conferred upon the Sur- rogate, the Surrogate retains jurisdiction of the proceedings, the direction for the trial of the issues proceeds from the Sur- rogate, the clerk of the court in which the trial took place is required to certify the verdict of the jury to the Surrogate's Court for further proceedings thereon, whether the trial was had in a County Court or a Circuit Court. On the other hand where the Appellate Division directs a new trial or a trial, by 264 surrogates' courts. jury of specific issues it would be an anomaly, if, although the Surrogate had lost all jurisdiction of the particular proceeding by the appeal to the Supreme Court, he could nevertheless en- tertain a motion for a new trial. Matter of Patterson, 63 Hun, 1st Dep. 529, 532. The distinction, therefore, is that the only occasion upon which a Surrogate can entertain a motion for a new trial, is after the verdict of a jury upon a controverted question of fact arising in a special proceeding for the disposi- tion of the real property of the decedent, or upon a probate case in New York County under section 2547, and even in such a case the motion for a new trial may also be made before the court in which the trial took place or the Supreme Court. In all other cases where a trial by jury has been ordered, the motion for a new trial should now be made in the Supreme Court. See discussion below. By section 2549 it is provided that An appeal may be taken from an order, made upon a mo- tion for a new trial, as prescribed in the last section, as if the order had been made in an action, and with like effect. Costs of such an appeal may be awarded by the appellate court, as if the appeal was from an order or decree of the surrogate's court. § 33. Award of jury trial upon reversal in probate cases. — Section 2588 provides : Award of jury trial upon reversal in probate cases. Where the reversal or modification of a decree by the ap- pellate court is founded upon a question of fact, the appellate court must, if the appeal was taken from a decree made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order, directing the trial, by a jury, of the material questions of fact, arising upon the issues between the parties. Such an order must state, distinctly and plainly, the questions of fact to be tried ; and must direct the trial to take place, either at a trial term of the supreme court speci- fied in the order ; or in the county court of the county of the surrogate. After the trial, a new trial may be granted, as prescribed in section two thousand five hundred and forty- eight of this act. § 3588, Code Civil Proc. The duty of the Appellate Division to direct a jury trial APPEALS FROM DBCEBES AND ORDERS. 265 under this section, has been clearly adjudicated. It arises, first, where the appeal was taken from a decree made upon a petition, {a) to admit a will to probate, or (b) to revoke the probate of a will. It arises, second, where an Appellate Divi- sion reverses or modifies such decree. It arises, third, where such action is founded upon a question of fact. Hence, Avhere the General Term reversed a Surrogate's decree refusing pro- bate, and the reversal was based upon the facts, it was held {Matter of Laady, 148 N. Y. 403, 409), that the court below could not on such reversal direct the Surrogate to admit the will to probate, but must direct " that a trial by jury be had at a trial term of the Supreme Court in the county of New York " of the specific questions of fact as to which they doubted the correctness of the Surrogate's findings. It held further that the exception to the rule was where the evidence disclosed by the record is such that in case of a trial before a jury the court could properly take the facts from the jury and determine the question as one of law. (See his- tory of the practice in this case stated at p. 431 of 161 N. Y. same name.) See for cases where trial by jury was ordered : Matter of Ooe, 47 App. Div. 177, 181, where court was in doubt whether will was the " free act of a competent testatrix " ; Mat- ter of Drahe, where court was in doubt as to testamentary capacity, and where the court framed the issues to be tried. See also Matter of Iredale, 53 App. Div. 45, 61 ; Burger v. Burger, 111 IST. Y. 523, 526 ; Matter of Pike, 83 Hun, 327, 331 ; Matter of Van Routen, 11 App. Div. 208 ; Matter of Dixon, 42 App. Div. 481 ; Matter of Tompldns, 69 App. Div. 474, citing Matter of Will of Elliok, 19 Wkly. Dig. 231 ; Mat- ter of Hannah, 11 IST. Y. St. Rep. 327, 331, citing in turn, Eow- land V. Taylor, 53 K Y. 627 ; Matter of Lansing, 17 N. Y. St. Kep. 440 ; Van Orman v. Van Orman, 34 N. Y. St. Kep. 824 ; Sutton v. Ray, 72 JST. Y. 482, 484. The order of the Ap- pellate^Court is the origin and test of the questions the jury must try and should specify them. Matter of Tompkins, supra. % 33a. The new trial. — The closing provision of section 2588 has been construed by the Appellate Division. Matter of Pat- terson, 63 Hun, 529 ; Matter of Laudy, 14 App. Div. 160. In the case first cited it was held that the Surrogate had no power to entertain the motion for a new trial by reason of the reference to section 2548 in section 2588. The court held as follows : 266 SUEEOGATES' COURTS. " Section 2588 relates to the practice which shall be followed upon a reversal or modification of a decree of the Surrogate, by the S^ipreme Court, upon a question of fact in a probate proceeding. It is provided that the court must, in such a case, direct a trial by a jury of the material questions of fact arising upon the issues between the parties ; and that it must direct the trial to take place either at a Circuit Court specified in the order, or in the County Court of the county of the Sur- rogate, or in the City of New York in the Court of Common Pleas. " The question is now presented as to how, after such a trial, the results of that trial are to be reviewed. And it is provided for explicitly by the last clause of section 2.588, which provides that a new trial may be granted as prescribed in section 2548. And it is upon the construction which is to be placed upon this clause that the question here presented, as to the proper prac- tice, must be determined. " In determining this question it is necessary, in the first place, to bear in mind the effect of an appeal to the Supreme Court from the Surrogate's Court. A probate proceeding by such appeal is removed into the Supreme Court. The Supreme Court becomes a court of original jurisdiction, and has the same power to decide questions of fact which the Surrogate had, and may, in its discretion, receive further or documentary evi- dence and appoint a referee. (Sec. 2586.) By section 2587 the Supreme Court may reverse, aifirm or modify the decree or order appealed from, and each intermediate order specified in the notice of appeal, which it is authorized by law to review as to any or all of the parties, and it may, if necessary or proper, grant a new trial or hearing. And by section 2585 it is pro- vided that the judgment roll containing the judgment of the Appellate Court shall be filed in the office of the clerk of the county of the Surrogate from whom the appeal is taken. And the sole authority which the Surrogate has for his subg^quent action in the case is derived from the judgment roll so filed. It is thus apparent that when once an appeal of this kind is taken the whole proceeding is in the Supreme Court, and remains in such court until formerly remitted back to the Surrogate ; and until it is so remitted the orders and decrees in the pro- ceeding must be orders and decrees of the Supreme Court. "We think, therefore, that the only portion of section 2548 which APPEALS PROM DECREES AND ORDERS. 267 was intended to be referred to in section 2588 was the case in which a new trial might be granted, and not the tribunal which should ascertain the application therefor, the particular practice relating to such motions being governed by the other provi- sions of the Code in reference to actions or proceedings pend- ing in the Supreme Court, And this view is supported by the fact that section 2548, where it speaks of the tribunals which are to entertain the motion, expressly refers to the cases pro- vided for in section 2547. In those cases the proceedings are all in the Surrogate's Court, and the direction for the trial of the issues proceeds from the Surrogate's Court ; and even where they are sent to a Circuit Court the motion for a new trial may be made before the Surrogate or in the Supreme Court ; in the Supreme Court, because the Circuit Court has no power to entertain motions for new trials except upon the judge's min- utes, and such motions are not appropriate in a case where issues have been framed in another court and sent by such court to the Circuit Court for trial. In a probate case, where issues have been framed by the Supreme Court and sent to a Circuit Court for trial, it never has been claimed that the Surro- gate had any further jurisdiction of the case except to proceed in accordance with the final judgment in the case." lu Matter of Laudy, supra, the Appellate Division of the First Department held, that the motion for a new trial after a trial by jury under section 2548, incorporated by reference, should be made precisely as is required where a new trial of specific questions of fact tried by a jury pursuant to an order for such trial made in an action would be granted. The court held that section 1003 and section 999 were applicable, and that consequently a motion for a new trial could be made upon the minutes of the court at the same term at which the verdict is rendered. But that under section 1003, " where the judge who presided at the trial neither entertains a motion for a new trial nor directs exceptions taken at the trial, to be heard at a term of the Appellate Division of the Supreme Court, a motion for a new trial can be made only at the term where the motion for final judgment is made or the remaining issues of fact are tried as the case requires." Matter of Laudy, 14 App. Div. 160, 162. See also Matter of Olarh, 40 Hun, 233 ; Webster V. Cole, 17 Hun, 507 ; Matter of Drake, 45 App, Div. 206, 215 ; Matter of Dixon, 42 App. Div. 481. 268 StTEROGATES' COURTS. § 34. Practice upon the appeal. — The practice after the Appellate Court has decided the appeal is covered by sec- tion 2585, which is as follows : Appeal where heard ; proceedings thereupon. In the appellate division of the supreme court the order made upon an appeal from a decree or an order of a surro- gate's court must be entered with the clerk of the appellate division, and a certified copy thereof annexed to the papers transmitted from the court below upon which the appeal was heard, must be transmitted to the court from which the appeal was taken, and the court below shall enter the judgment or order necessary to carry the determination of the appellate division into effect. § 3585, Code Civil Proc. It is only to be noted in this connection, that the certification of the papers to the court below, or the entry by such court of the judgment or order necessary to carr}' the determination of the Appellate Division into effect, is not required to be done before the party aggrieved by the determination of the Appel- late Court can appeal to the Court of Appeals ; the appeal can be taken from the order of the Appellate Division as soon as it has been entered and served with notice of entry. Lihby v. Mason, 112 N. Y. 528. But where the proceedings are remitted by the Appellate Court to the Surrogate for a rehearing or for further action, this rehearing or action by the Surrogate cannot be had until the papers have been certified back to the Surro- gate's Court ; and so, where an appeal has been had to the Court of Appeals, which directs a rehearing by the Surrogate, the rehearing cannot proceed until the remittitur of the Court of Appeals has been filed and the Supreme Court has entered a formal decree thereon. Wright v. Wright, 3 Kedf. 325, 327, Coffin, Surr. § 35. Judgment or order upon appeal. — The form of the determination of the Appellate Court is prescribed by sec- tion 2587, which is as follows : The appellate court may reverse, aflBrm, or modify the decree or order appealed from, and each intermediate order, specified in tlie notice of appeal, which it is authorized by law to review, and as to any or all of the parties ; and it may, if necessary or proper, grant a new trial or hearing. APPEALS FEOM DECREES AND OKDERS. 269 The decree or order appealed from may be enforced, or res- titution may be awarded, as the case requires, as prescribed in title first of chapter twelfth of this act, with respect to an appeal from a judgment. § 3587, Code Civil Proc. The sections of chapter 12 which are made applicable are sections 1319 and 1320, which provide the mode of enforcing a judgment or order, either modified or affirmed. These sec- tions are as follows : Mode of enforcing affirmed or modified judgment. Where a judgment from which an appeal has been taken, from one court to another, is wholly or partly affirmed, oris modified, upon the appeal, it must be enforced, by the court in which it was rendered, or to the extent permitted by the determination of the appellate court, as if the appeal there- from had not been taken. § 1319, Code Civil Proc. Mode of enforcing modified or affirmed order. Where a final order, from which an appeal has been taken, from one court to another, as prescribed in title fifth of this chapter, is wholly or partly affirmed, or is modified, upon the appeal, the appellate court may enforce its order, or may direct the proceedings to be remitted, for the purpose fo the court below, or to the judge who made the order appealed from. § 1330, Code Civil Proc. It has been questioned whether, when there are several defendants, the Appellate Court has authority to reverse a decree in part and to aflfirm it in part. The rule seems to be well settled that upon an appeal from a judgment which is entire and against several defendants, the Appellate Court must either totally alfirm or reverse, both as to the recovery and as to all the parties. But in cases where there are separate and distinct judgments, or where an error exists as to a separate claim or defense, which relates only to a transaction between the plaintiff and one of the defendants, the judgment may be reversed as to such a claim or defense, and only as to the par- ties interested therein, and affirmed as to the remainder. These rules are not of recent origin. They existed and were practi- cally the same at common law, under the Revised Statutes and the Code of Civil Procedure. Altman v. Hofeller, 152 IST. Y. 270 surrogates' courts. 498, 504, citing Rlohards v. Walton, 12 Johns. 434 ; Arnold v. Sandford, 14 Johns. 417, 425 ; Van Bokkelin v. Ingersoll 5, Wend. 315 ; Shelden v. Quinlan, 5 Hill, 441 ; Farrell v. Cal- kins, 10 Barb. 348 ; Story v. N. Y. S Harlem R. R. Co., 6 N. Y. 85, 89 ; WolsUnholme v. Wolstenholme File Mfg. Co., 64 N. Y. 272 ; Goodsell v. Western Union Tel. Co., 109 N. Y. 147 ; Board of Underwriters v. Nat. Bank, 146 N. Y. 64. See discussion of cases cited, at pages 504 to 506. § 36. Power of the Appellate Court, — When an appeal, however, from a Surrogate's decree is taken on the facts, the Appellate Court, while the proceedings are before it, has power to decide any questions of fact which the Surrogate could de- cide, and in its inquirjj^ into such facts it may take further testimony or documentary evidence, and also direct a refer- ence for the purpose of taking such testimony. Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact, which the surrogate had ; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee. § 3586, Code Civil Proc. This power, however, will only be exercised in necessary cases and where a clear reason therefor is shown. So in the Oaines Will case, where the decree appealed from had been made several years before the appeal came on, and application was made to the General Term to direct the taking of further evidence, the General Term refused to exercise its power un- der section 2586. Matter of Oaines, 74 Hun, 94. The Appel- late Court must be satisfied that the evidence sought to be se- cured is important enough to justify a rehearing. Matter of Hannah, 45 Hun, 561. Newly discovered evidence may be received by the Appellate Division. Caujolle^s Appeal, 9 Abb. 393; Matter of Drake, 45 App. Div. 206, 211. The duty of the Appellate Division is not merely to deter- mine whether there was sufficient evidence to support the decision but it is expected to determine for itself whether the Surrogate correctly determined the facts. Matter of Rogers, 10 App. Div. 593 ; Matter of Warner, 53 App. Div. 565, 567. When the remittitur of the Appellate Division is sent down, APPEALS FKOM DECREES AND OEDERS. 271 an order must be entered ia the Surrogate's Court making the order of the Appellate Division the order of that court. Until that be done, no decree or further proceeding can be made or had. Estate of George Geissle7', N. Y. Law Jour. June 19, 1902. CHAPTEE YI. COSTS AND ALLOWANCES. § 1. Costs in Surrogates' Courts. — Costs in Surrogates' Courts are awarded either by order or by decree. An order is a mere direction of a Surrogate's Court made or entered in writing and not included in a decree. Code Civ. Proc. § 2556. A decree or final order as it may be called, is a final de- termination of the rights of a party to a special proceed- ing in a Surrogate's Court. Code Civ. Proc. § 2550. The costs allowed by an order are determined by the same rules, as to amount and method of collection, as in the case of an order made by the Supreme Court in an action (§ 2556). Thus, the costs which may be imposed upon the granting or denial of a motion being $10.00 in the Supreme Court, a party to a proceeding in a Surrogate's Court cannot be permitted to increase the amount of his costs, by framing his order as a de- cree. Pease v. Egan, 3 Dem. 320. Where petitioner moved to open a decree and his appli- cation was denied, Kollins, Surr., held, that while the decree sought to be vacated was a final determination Avithin the mean- ing of section 2550, the refusal to disturb it must be framed as, and incorporated in, an order (§ 2556). An application for an order is a motion (Code Civ. Proc. §§ Y57, 768). Maxi- mum costs upon a motion are $10.00 in the Supreme Court and must be limited to that sum in the Surrogate's Court (§3251). Stohes v. Dale, 1 Dem. 260, 264. The allowance of costs is regulated by the Code, and the Surrogate has no power to award costs or make an allowance for any purpose unless expressly authorized to do so by the Code. Matter of Ingraham, 35 Misc. 577 ; Matter of Ilolden, 126 N. Y. 589 ; McMahon v. Smith, 20 Misc. 305, 308 ; Du Bois v. Brown, 1 Dem. 317 ; Matter of Bender, 86 Hun, 570. This applies to costs, allowances and disbursements, including witness's and stenographer's fees. Matter of Engelhrecht, 15 App. Div. 541. § 2. Collecting costs.— As to the enforcement of either an order or a decree awarding costs, see chapter IV, am,te, on De- (272) COSTS AND ALLOWANCES. 273 crees and Orders. It is sufficient here to observe that motion costs must be collected in the manner provided by section 779, Code Civ. Proc, q. v. Surrogate Rollins in 1884, held explicitly {Soofield V. Adriance, 2 Dem. 486), that section 779 of the Code providing how costs of a motion are to be collected, does not apply to a Surrogate's Court. This was where petitioner asked that the Surrogate's Court should refuse to entertain a certain application on the ground, that the party applying had omitted to pay certain costs, and that therefore all proceedings on his part should be deemed stayed until the payment of such costs. In 1886 the same Surrogate {Matter of Lippincott, 5 Dera. 299) held that the manner of collecting motion costs in the Surrogate's Court is declared by section 2556 of the Code to be the same as collecting costs upon an order in a Supreme Court action. " The reference is to section 779 which provides that the collection of costs upon an order may be enforced by execution." These decisions are not to be deemed necessarily conflicting, for, while by subdivision 6 of section 3347, it is manifest, that section 779 is not made applicable to Surro- gates' Courts, yet it is equally clear from section 2556 or so much thereof as provides that costs upon an order of a Surro- gate's Court are the same, and may be collected in like man- ner as upon an order of the Supreme Court, that part of section 779 which provides that the collection of motion costs directed by an order to be paid may, in case of nonpayment, be had by execution is inapplicable. As to the enforcement of decrees Surrogates' Courts are given greater power to enforce their decrees by contempt proceedings than appears to be vested in any other court of record. See Code Civ. Proc. §§ 14, 1241, 2481, 2555, 3347; Matter of Humfreville, 19 App. Div. 381, 382, O'Brien, J., citing Matter of Kurtzman, 2 JST. Y. St. Rep. 655 ; Matter of Dissosway, 91 IST. Y. 235. On appeal, Matter of Humfreville was reversed, 154 1^. Y. 116, but merely to hold, as intimated ante, at page 200 et seq., that where the only money payment directed by a Surrogate's decree is costs, it cannot be enforced by imprisonment. § 3. Analysis of discussion — With this introductory state- ment we pass to the general costs in Surrogates' Courts. The subject will be discussed under the following subtopics : (a) When costs are awarded as of right. (b) When costs are in the discretion of the Surrogate. 18 274 SUKKOGATES' COUKTS. (c) Allowances in Surrogates' Courts. {d) Taxable disbursements in Surrogates' Courts. § 4. Costs, how made payable. — But it may be preliminarily observed that, since proceedings in the Surrogate's Court are proceedings iti rem, the question has always been an important one as to whether the fund or estate over which the Surrogate has jurisdiction may be had recourse to for the payment of the costs which the Surrogate is authorized to award. This is ex- pressly covered by section 2557, which is as follows : Costs, how made pay.ahle Except where special provision is otherwise made by law, costs, awarded by a decree, may be made payable by the party personally, or out of the estate, or fund, as justice re- quires ; but costs, other than actual expenses, cannot be paid out of an estate or fund, which is less than one thou- sand dollars ia amount or value. § 3557, Code Civil Proc. 2 R. S. 223, § 10; L. 1866, cli. 784. This action gives the Surrogate not only power but discre- tion, as to making the costs pa^'able by a party personally or out of an estate or fund. Matter of Henry, 5 Dera. 272. Costs will be charged upon parties personally in all cases where the Surrogate has reason to believe that the proceedings have been instituted by such party either in bad faith or for any other reason unjustifiably. Matter of Loiuman, 1 Misc. 43 ; Matter of Whelan, 6 Dem. 425. So, where an attorney or counsel has been guilty of palpable bad faith or fraud, the court has the power to compel him to pay the costs personally. In re Tacke^a Will, 3 K. Y. Supp. 112, same case, 3 N. Y. Supp. 431, citing Matter of Kelly, 62 N. Y. 198, and section 2481, subdivision 7. Where there are various parties to a proceeding before the Surrogate's Court, as in the case of contested wills, the Surro- gate may allow costs against the petitioner personally to any or all of the several contestants. Colly er v. Colly er, 110 IST. Y. 481-487 ; but see discussion under section 2558 below, at pages 276 and 277, prohibiting the allowance of costs to an unsuc- cessful contestant -whether payable out of the estate or other- wise. No personal liability for costs attaches, however, where a party to a proceeding is merely a formal party, that is to say, not a necessary party. When upon the application for COSTS AND ALLOWANCES. 275 the appointment of a guardian, the mother of the infant in- terested was cited to comply with the requirements of the Code, the 'Court of Appeals held that she was not a party within the meaning of the Code as to liability for costs. Matter of Yalentine, 22 "Weekly Dig. 175. But mere lack of success in proceedings in Surrogates' Courts is no reason for impos- ing personal costs. In re Castles' s Will, 2 N. Y. Supp. 638. See also SiUing's Estate, 2 N. Y. Supp. 637, where Surrogate Hansom enforced the payment of personal costs charged upon an objector to the probate of a will personally by deducting the amount from said objector's share of the estate in the hands of the executor. One who institutes a proceeding in good faith will not be subjected to the burden of paying costs per- sonally. Matter of Keeler, 2 Connoly, 45. So where a contest- ant unsuccessfully attacked the will, but the proceedings were not unreasonably delayed and no witnesses were examined except the subscribing witnesses to the will. Surrogate Eollins held that justice did not require that such contestant should be personally charged with the proponent's cost. But if it appears that the contestant has merely enga'ged in a fishing expedition, and blocks the expeditious probate of the paper propounded, or hinders and delays the proceeding for the pur- pose of forcing some recognition of fancied rights with a wavering hope that something may turn up which will be of advantage, in such cases the Surrogate is vested with power to impose personally costs by way of a deterrent from reckless litigation. Matter of WAelan's Estate, 2 N. Y. Supp. 635. Costs will not be awarded to a number of contestants separately if they are united in interest, but where they appear by various attorneys and have entirely distinct interests under the will, they will be allowed separate bills of costs. Matter of Lasak, 1 Connoly, 490 ; Collyer v. Oollyer, 4 Dem. 53-64 ; Hanselt v. Vilmar, 76 N. Y. 630. See also Matter of Fuller, 16 Civ. Pro. Rep. 412. The award of costs in a case is made by way of in- demnity to the successful party. One who is entitled to share in an estate is not indemnified in that regard if he is compelled to give up part of the estate to pay himself for costs which other people have made in trying to take the estate away from him. Therefore when the person trying to get the estate fails to secure it, it is a proper case to require him to pay the costs personally of his unsuccessful attempt. Matter of Seagrist, 276 SUEKOGATES' COURTS. 1 App. Div. 615-623, opinion of Kumsey, J. This of course does not cover cases where the person trying to get the estate sustains such a' relationship to the decedent as to give him a prima facie case, as where the alleged will purports to disinherit a wife or child in favor of some stranger to the estate. § 5. Costs against an executor or administrator person- ally. — So also, costs may be imposed upon an executor or ad- ministrator personally, as where an executor or administrator was shown to have been dilatory in accounting proceedings referred to a referee, and to have manifested no disposition to proceed in good faith to exhibit the condition of the estate in his hands. Estate of OoetscUus, 23 N. Y. Siipp. 975 ; Matter of Williams, 17 St. Eep. 839 ; or where he interposed merely technical objections to being compelled to account. Matter of Post, 30 Misc. 551. So, also, where an executrix has wasted the estate in her hands. Estate of Stanton, 18 St. Eep. 807. So where an executor unreasonably compels a litigation of a personal claim against the estate as in requiring a construing of the will to determine whether a particular fund belongs to the estate and the distributees, or to the executor personally. Estate of Mull, 16 St. Eep. 981. But if an executor resists a claim and succeeds in materially reducing it, he will not be sub- jected to costs (i. e., reduction of 75 per cent). Matter of Ingra- ham,, 35 Misc. 577. Where executors unreasonably defend a pro- ceeding to compel them to give a bond or furnish additional security, they will be adjudged to pay costs. G'Brienh Estate, 19 N. Y. Supp. 541 ; 25 JST. Y. Supp. 704. So, if an executor or administrator refuses to comply with an order or decree directing him to do a particular thing or pay a particular sum, and a motion to compel him to comply with the order or decree is necessitated, the costs of such a motion will be personally imposed upon the executor. Gurry's Estate, 19 N. Y. Supp. 728. So where a guardian filed an account containing im- proper items, and objections had to be interposed to protect his ward's interests, costs were imposed on the guardian per- sonally. Matter of Decker, 37 Misc. 527. See also Matter of Kopp, 15 Civ. Pro. 282. § 6. When costs are awarded as of right. — Taking up the discussion as to costs generally we turn first to section 2558: COSTS AND ALLOWANCES. 277 Costs ; when awarded. The award of costs in a decree is in the discretion of the surrogate, except in one of the following cases : 1. "Where special directions, respecting the award of costs, are contained in a judgment or order, made upon an appeal from the surrogate's determination, or upon a motion for a new trial of questions of fact tried by a jury ; in either of which cases, costs must be awarded according to those di- rections. 2. When a question of fact has been tried by a jury ; in which case, unless it is within the foregoiag subdivision, the decree must award costs to the successful party. 3. When the decree is made upon a contested application for probate or revocation of probate of a wUl, costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the wUl, unless he is a special guardian for an infant, appointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as the last will of the decedent ; but the surrogate may order a copy of the stenographer's minutes to be furnished to the contestant's counsel, and charge the expense thereof to the estate, if he shall be satisfied that the contest is made in good faith. § 2558, Code Civil Proc. It is apparent from subdivision 1, that where a Surrogate's decree has been appealed from, or the verdict of a jury on a trial of questions of fact had been appealed from and the order or judgment of the Appellate Court gives special directions respecting the award of costs, the Surrogate has no discretion but must follow such directions. But if the Appellate Court has directed that one of the parties shall have costs for his pro- ceeding in the Surrogate's Court but none for his proceedings in the Appellate Court, the Surrogate is under the necessity of fixing the costs to be allowed in his own court {Matte)' of Bull, 1 Connoly, 395, 398), or if the Appellate Court gives no direc- tion as to whether they shall be paid personally or out of the estate, then the Surrogate of course has discretion in regard to such details. Sohell v. Hewitt, 1 Dem. ^49, 255. So, if the Appellate Division reverses an order of the Surro- gate " with costs" only, he has no power to tax disbursements on appeal, for sections 3251 and 3256 are held as not apply- ing to Surrogates' Courts. Matter of Steenoken, 58 App. Div. 278 SUEHOGATES' COURTS. 85, citing Cassidy v. McFadand, 139 JS". Y. 209. In this case, however, leave was given to resettle the order in the Appellate Division, on notice. § 7. Same. — This is manifest also from section 2589 which is as follows : Costs of appeal. (See next page.) The appellate court may award to the successful party the costs of the appeal ; or it may direct that they abide the event of a new trial, or of the subsequent proceedings in the siu-- rogate's court. In either case, the costs may be made pay- able out of the estate or fund, or personally by the unsuccess- ful party, as directed by the appeUate court ; or, if such a direction is not given, as directed by the surrogate. § S589, Code Civil Proc. (See also § 2561, at page 283, § 2558, at page 277.) 2 R. S. 608, § 96, and 2 K. S. 67, the first sentence of § 61. Section 2560 should be considered in this connection. It pro- vides that : Where a question of fact has been tried by a jury, the costs, awarded against the unsuccessful party, are the same as the taxable costs of an action in the supreme court. The costs of an appeal, where they are awarded in a surrogate's court, are the same as if they were awarded in the supreme court. § 3560, Code Civil Proc. It is clear from these three sections, i. e., sections 2558 and 2560 {q. V. at p. 277), as limited by section 2589, that the Sur- rogate, while he has the power to adjust in his final decree the costs in appeal proceedings, either according to the direction of the order or judgment of the Appellate Court, or in his dis- cretion, in the particulars wherein the Appellate Court has failed to exercise its own, still he is not given by such section an}^ power to award such costs ; in other words they do not aim to enlarge the scope of his authority so as to enable him to adjudge that costs be paid when the court above has re- fused to pay them or has given no direction whatever. They are simply designed to establish the mode whereby the Surro- gate is enabled to exercise in respect to costs on appeal, such limited authority as is conferred upon him by other provisions COSTS AND ALLOWANCES. 279 of law. Sohell v. Hewitt, supra, opinioa of EoUins, Surr. So where the Appellate Court has refused to award costs the Surrogate has no power to award them. JEstate of Hatten, 6 Dem. 444. See, as to costs in Appellate Court, Matter of Bald- win, 30 Misc. 169, 172 citing Matter of W. Gomin!rs of Am- sterdam, 104 N. Y. 677 ; B. S. Inst. v. Pelham, 148 N. Y. 757. But it has been held, where a Surrogate refused probate of a will and appeal was taken from his decree, which was reversed and the issues ordered to be tried under section 2588, and a verdict had upon these issues, that it would be irregular for the circuit judge before whom the trial was had, to make any order for costs or any direction as to how they should be paid ; the practice in such case is that the verdict of the jury must be certified to the Surrogate who makes a decree accordingly ; and in making his decree the matter of costs rests with the Surrogate, except as to the costs of appeal which must be fixed by the Appellate Court. As to such appellate costs the Surro- gate has no discretion, except to direct how they shall be paid, in case the Appellate Court has given no direction in that re- gard. Matter of Campbell, 48 Hun, 417. Nor can he modify the decree as fixed by the Appellate Division. Matter of Mc- Eohron, 55 App. Div. 147, 149, citing Reed v. Reed, 52 N. Y. 651; Hone v. Be Peyster, 106 N. Y. 645, 649; Sheridan v. Andrews, 80 N. Y. 648. Surrogate Ransom held in Matter of Hatten, supra, that section 2558 contemplated in subdivi- sion 2 thereof, the jury trial mentioned in section 2560, and also the case where a Surrogate may grant a new trial, by a jury, of questions of fact upon a motion for the purpose, but, he added, " to authorize the Surrogate to award costs in either of these cases, there must, as required by subdivision 2 aforesaid, be an absence of the direction specified in subdivision 1." In every other case the Surrogate has the usual discretion as to award- ing costs except as further limited by subdivision 3, which pro- vides explicitly that costs should not be awarded to unsuccess- ful contestants of a will,, either upon a contested application for probate or revocation of probate. Where A contested a wUl, and while unsuccessful as to the factum of the will, was successful in getting the construction of it for which he con- tended he was held entitled to costs. Matter of Bogart, 46 App. Div. 240. However this rule is stated not to apply to a special guardian for an infant, who has been appointed by the 280 surrogates' courts. Surrogate who may contest the will, or where the contestant is a person named as executor in a paper propounded by him in good faith as the last will of the decedent. § ?558, subd. 3. These provisions are explicit, so where an infant party inter- venes by counsel and not by special guardian, and contests the probate of a will unsuccessfully, the Surrogate cannot award him costs. Matter of Lamb, 22 IST. Y. St. Rep. 350. But where an infant intervenes and has a special guardian appointed, and opposes the probate of a will and probate is granted, his special guardian is an unsuccessful contestant under subdivision 3, and costs may be awarded him out of the estate or otherwise as the Surrogate may allow ; only in such a case the court is of course limited by section 2561, ^osi!, as to amount of costs it can award. Forster v. Kane, 1 Dera. 67. Where an executor propounded a paper in good faith as the last will of a decedent, but being an attorne}' acted as his own counsel. Surrogate CoflBn held that he was not entitled to costs. Whelpley v. Loder, 1 Dem. 368, 383. Although in such case he is not prevented from hav- ing a copy of the stenographer's minutes at the expense of the estate, under the last paragraph of subdivision 3. Where an -executor received letters under a will and opposed an applica- tion to revoke the probate thereof on the ground that another paper propounded was the decedent's last will, and said latter paper was admitted to probate, probate of the former will be- ing revoked, it was held that it was nevertheless within the meaning of subdivision 3 of section 2558, and the executor could have his costs. Bertine v. Hubbell, 1 Dem. 335. So where decedent's widow contested probate of a will made in favor of another woman, and presented a prior will in her own favor for probate, and the Surrogate admitted the latter will to probate, it was held that she was an unsucessful contestant excepted within the meaning of subdivision 3, but that the al- lowing of costs was wholly within the discretion of the Sur- rogate and his refusal to award them to her was not error. Matter of Mondorf 110 IS". Y. 450, 457. Therefore costs are awarded as of course under subdivisions 1 and 2 of section 2558; 'denied as of course under the first part of subdivision 3 ; and discretionary in case of the classes of " unsuccessful con- testants " excepted by the latter part of subdivision 3. § 8. Costs when discretionary — With the exceptions al- ready noted, first, as to cases in which the Surrogate cannot COSTS AND ALLOWANCES. 281 award costs at all, and second, as to persons to whom he can- not allow costs, the allowance of costs by a Surrogate rests in his discretion within the limits as to amouat to be hereinafter noted. Section 2559 of the Code provides how costs are to be awarded : Costs, when awarded by a decree, include all disbursements of a party to whom they are awarded, which might be taxed in the supreme court. The sum allowed for costs must be fixed by the surrogate, and inserted in the decree. § ^559, Code Civil Proc. Under this section it is to be noted that a Surrogate has no power to award costs to any but parties to the proceeding. It has been distinctly held that this does not mean attorneys for the parties. (See page 287 below.) The power to award costs is derived wholly from statutory provisions. Matter of Holden, 126 ]Sr. T. 589 ; MoMahon v. Smith, 20 Misc. App. Term, 305, 308 ; Bu Bois v. Brown, 1 Dem. 317. Previously to 1870 the statute (2 Rev. Stat. 223, § 10, Banks's 6th ed. vol. Ill, 330) was as follows : " In all cases of contest before a Surrogate's Court, such court may award costs to the party in the judgment of the court entitled thereto, to be paid either by the other party per- sonally, or out of the estate which shall be the subject of such controversy." See Western v. Romaine, 1 Bradf. 37 ; Wilcox v. Smith, 26 Barb. 316 ; Lee v. Lee, 39 Barb. 172 ; Bevin v. Patchen 26 JSr. Y. 441 ; Eeed v. Lieed, 52 IST. Y. 651. By the act of 1870 (chap. 359, § 9) the Surrogate of New York was authorized to make allowances in lieu of costs, directly to counsel. Kearney V. McKeon, 85 N. Y. 136 ; Walton v. LLoward, 1 Dem. 103, Rol- lins, Surr. But the Code of Civil Procedure repealed this act, and under the Code there is no provision whereby the Surro- gate of any county can lawfully award compensation out of a decedent's estate directly to the counsel of parties. Noyes v. Children's Aid Society, 70 IST. Y. 483 ; Estate of Withers, 2 Civ. Proc. Rep. 162. Nor will the fact that numerous counsel were retained avail to increase the taxable costs. Matter of Brown, 66 How. 461 ; Bu Bois v. Brown, 1 Dem. 317, 330. Their charges are against the executor personally or against the par- ties personally and may not be made payable out of a fund. Seaman v. Whitehead, 78 N. Y. 306 ; Marsh v. Avery, 81 N. Y. 29. 282 surrogates' cotjets. § 9. Amount of costs.— Section 2559 already quoted pro- vides that the sum allowed for costs must be fixed by the Sur- rogate and inserted in the decree, and also provides that it shall include all disbursements which could be taxed in the Supreme Court. The Surrogate, therefore, is made the taxing oflBcer instead of the clerk, and the authority for all costs taxed must be found in the statute. See section 3256 under disburse- ments, infra. Matter of Bender, 86 Hun, 570. Kule 22 of the New York County Surrogate's Court is carefully drawn and provides a reasonable practice in regard to taxation of costs in that court. " Whenever a party to a decree shall deem himself entitled to costs, the same will be considered and determined by the Surrogate, on two days' notice of adjustment, to be served upon the opposing party, with the items of costs and disburse- ments to which the party may deem himself entitled at the time of the settlement of the decree, which disbursements shall be duly verified, both as to their amount and necessity, the dis- bursements for referee's and stenographer's fees being sustained by their affidavits or detail proof ; and at the same time, and on like notice, the Surrogate will pass upon any additional allow- ance to be made to any executor, administrator, guardian or testamentary trustee, upon a judicial settlement of his account ; which notice of adjustment and allowance shall be accompanied by an affidavit, setting forth the number of days necessarily occupied in the hearing or trial, the number necessarily occu- pied in preparing the account for settlement, and in the prep- aration for the trial, the time occupied on each day in the rendition of the services, and their nature and extent in detail. In case such trial shall have been had before a referee, the time necessarily occupied in such trial before him may be shown by a certificate of such referee. The affidavit as to disbursements, time engaged in trial, and in preparing the account and for trial, may be controverted by affidavit. But in the absence of such or a similar rule, the practice in the Supreme Court should be followed, a bill of costs, allow- ances and disbursements should be prepared and notice of tax- ation given in the case and manner required by that court. Where the stenographer's fees are taxable they should be paid by the proper party and the amount included as a disbursement in the bill of costs ; the same regarding referees' fees and other COSTS AND ALLOWANCES. 283 disbursements. Du Bois v. Brown, 1 Dem. 317, 333 ; Estate of WilUtt, 6 Dem. 435. § 10. Same subject. — The amount of costs and allowances is limited by sections 2560 and 2561, which are as follows : Amount of costs on trial of fact and on appeal. (As to costs on appeal, see ante, p. 278.) Where a question of fact has been tried by a jury, the costs, awarded against tlie unsuccessful party, are the same as the taxable costs of an action in the supreme court. The costs of an appeal, where they are awarded in a surrogate's court, are the same as if they were awarded in the supreme court. § 3560, Code Civil Proc. See Matter of Bull, 1 Connoly, 395, opinion of Eansom, Surr. When surrogate to fix amount of costs. In a case other than one of those specified in the last sec- tion, the surrogatis, upon rendering a decree, may, in his dis- cretion, fix such a sum, to be allowed as costs, in addition to the disbursements, as he deems reasonable, not exceeding, where there has not been a contest, twenty-five dollars, or where there has been a contest, seventy dollars ; and, in ad- dition thereto, where a trial or hearing upon the merits before the surrogate necessarily occupies more than two days, ten dollars for -each additional day; and where a motion for a new trial is made before the surrogate, if it is granted, sev- enty dollars ; if it is denied, forty dollars. § 3561, Code Civil Proc. The Surrogate has no power therefore to increase the costs fixed in the specific cases covered by these sections. Matter of Dodge, 4-0 Plun, 443 ; Matter of Fernbacher, 8 Civ. Pro. E. 349 ; Matter of Withers, 2 Civ. Pro. E. 162. For his power to award costs is derived wholly from statutory provisions. Mat- ter of Ingraham, 35 Misc. 577, 579, citing Matter of Holden, 126 IST. Y. 589 ; McMahon v. Smith, 20 Misc. 305, 308 ; Da Bois V. Brown, 1 Dem. 317. But his discretion within the statutory limit will not be interfered with by the Appellate Courts. In re Miles, 12 N". Y. Supp. 157 ; Hannahs v. Han- nahs, 68 N. Y. 610. Section 2561 is very sweeping and covers 284 STTKROGATES* COTJETS. every proceeding other thau those specified in section 2560, that is to say practically every proceeding which the Surrogate has tried. This of course includes a trial had before a referee. Matter of Clarh, 36 Hun, 301. But in such case there can be no allowance for days on which adjournments are had without any actual hearing, and so also it has been held that time occupied in preparing pleadings, making briefs, appearing on adjournments, or settling a decree, cannot be relied upon to increase time contemplated by section 2561 by the Surrogate, " where a trial or hearing upon the merits before the Surro- gate necessarily occupies more than 2 days," and no per diem allowance can be made under that section. However, a sum- ming up or argument made to the court must be regarded as a hearing upon the merits. Du Bois v. Brown, 1 Dem. 317, 330. Where a disputed claim is referred by consent to the Surrogate and heard by him upon the judicial settlement, costs to the successful claimant are discretionary, the amount being limited by section 2561. Matter of Ingraham, 35 Misc. 577. But in the exercise of this discretion the Surrogate should be guided by the principles and decisions relating to the question of costs against estates in case of actions. Ibid, at p. 580, quot- ing §§ 1835 and 1836, Code. Civ. Proc. So, where trustees con- test and defeat an application made in behalf of an infant bene- ficiary to have the whole income of the trust applied to his support, they are successful contestants and entitled to $70.00 in addition to their disbursements. Matter of McCorniick, 40 App. Div. 73, 78. In Matter of Hogarty, 62 App. Div. 79, 87, it was held that while the term "contest" in section 2561 clearly relates to the trial of an iss%ie of fact, yet, where the Surrogate passed on the issue, raised as to whether a trust had terminated, and had treated the case as a contest without objection, the costs allowed could not be objected to on appeal for the first time. § 11. Costs to special guardians. — A special guardian is appointed to look after and protect the interests of the infant ; he has no duty in reference to the estate of the testator ; so that, as to his compensation, there is no authority for its pay- ment out of the estate, even though the guardian be ap- pointed by the court on its own motion. Matter of Bohinson, below, citing Matter of Budlong, below ; Matter of Holden, 126' N. Y. 589. This does not apply to his costs ; they may COSTS AND ALLOWANCES. 285 be awarded out of the estate within the limits of the provi- sions of the sections already quoted, i. e., §§ 2557-2561. See Matter of Robinson, 160 IST. Y. 448, 452, aff'g 40 App. Div. 30 ; Matter of Farmer's L. &. T. Co., 49 App. Div. 1. Such costs may not exceed $70.00 where the trial does not occupy more than two days, and $10.00 additional for each day necessarily occupied. This is, of course, in addition to his taxable dis- bursements. Matter of Tracy, 18 Abb. TS". C. 242. The com- pensation of the special guardian, by which is meant an al- lowance, such an allowance as the Surrogate is authorized to award, must be had by him from the infants or their estate. Matter of Btidlong, 100 IST. Y. 203, 205 ; Matter of Ruppaner, 7 App. Div. 11 ; ]V. T. Life Ins. c& Trust Go. v. Sands, 26 Misc. 252 ; Brincherhoff v. Farias, 52 App. Div. 256, 263. It is submitted that this rule should be modified so that in cases where a guardian ad litem, acting for the infant or infants, is successful in maintaining a will in which they are interested against a contest, or in setting a will aside which divested their interest in the estate, his costs and allowances should be payable out of the estate, whether bis infants have a pres- ent estate therein or not. Thus, where a special guardian was appointed to protect the rights of certain infants to whom a whole estate was left after the life interest of testator's widow in the whole property should have determined, and the will was contested, and the whole burden of the contest as- sumed by the guardian ad litem and the contestants defeated, it was certainly a hardship that the special guardian should be limited to a $70.00 bill of costs. See Stone's Will, 1^. Y. Law Journal. Moreover, the representation of the infant by special guardian, even though an infant's interest be very small, is imperative in order to the regularity and conclusive- ness of the proceeding, and his reasonable compensation in such a case would be a fair expense for the estate to bear. An order allowing costs to a guardian ad litem, in excess of those allowed by the statute is therefore improper and may be disregarded. Such disobedience thereto cannot be punished as for contempt. Matter of Monell, 28 Misc. 308. The fact that the special guardian retains counsel is wholly immaterial ; a Surrogate has no power to award counsel fees to counsel. Forster v. Kane, 1 Dem. 67 ; Matter of Johnston, 6 Dem. 355. It has been held that where the appointment of a 286 surrogates' courts special guardian of infant heirs is necessary for the protection of an administrator, such special guardian may have an allow- ance out of the estate. Ex parte Locklan, 4 Abb. N. C. 173. Unless a special guardian is reappointed to protect the rights of the infant upon an appeal the Surrogate is without power to allow him costs in case the Appellate Court has awarded him none. Suhell -v. Reioitt, 1 Dem. 249; Matter of Bull, & N. Y. Supp. 566. The rule is, if the interests of an infant need protection in proceedings upon appeal from the Surro- gate, it is the province of the Appellate Court to appoint for that purpose a guardian ad litem. Schell v. Hewitt, supra, Rollins, Surr., citing Kellinger v. Roe, 7 Paige, 362 ; Under- hill v. Dennis, 9 Paige, 209 ; Chaffee v. Baptist Miss. Con., 10 Paige, 85, 89 ; Moody v. Glea^on, 7 Cowen, 482 ; Fish v. Ferris, 3 E. D. Smith, 567. The Appellate Court may, without a formal designation, recognize as a guardian ad litem one who was so appointed by the Surrogate and appears in the higher court ; if the Appellate Court does so recognize him, he may become entitled to compensation, but in that case should see to it that the Appellate Court inserts in its decree directions to that end, for in the absence of directions from the Appellate Tribunal the Surrogate has no authority to make any provi- sion for his compensation. But where the guardian is himself the appellant he is a party to the appeal under section 2573. Matter of Stewart, 23 App. Div. 17. § 12. Allowances in Surrogates' Courts. — In addition to the provisions for costs, the Code provides for additional allow- ances upon the judicial settlement of an account, or upon an intermediate accounting required by a Surrogate, and also upon the sale of decedent's real property certain allowances which in the latter case are stated to be in lieu of commission. The sections are as follows : Additional allowance in settling accounts. In addition to the sums specified in the last two sections, the surrogate may, in his discretion, allow to an executor, administrator, guardian, or testamentary trustee, upon a judicial settlement of his account, or an intermediate ac- counting required by the surrogate, such a sum, as the sur- rogate deems reasonable, for his counsel fees and other expenses, not exceeding $10.00 for each day occupied in the COSTS AND ALLOWANCES. 287 trial, and necessarily occupied in preparing his account for settlement, and otherwise preparing for the trial. § 2563, Code Civil Proc. Allowance upon sale of real property. Upon the disposition of real property of a decedent, as prescribed in title fifth of this chapter, the executor, admin- istrator, or freeholder, disposing of the property, must be allowed by the surrogate, out of the proceeds of the sale brought into court, his expenses ; and he may be allowed, out of the proceeds, a reasonable sum for his own services, not exceeding $5.00 for each day, actually and necessarily occupied by him in disposing of the property and such a fur- ther sum as the surrogate thinks reasonable, for the neces- sary services of his attorney and counsel therein. § 2563) Code Civil Proc. Upon sale of real property, no commissions allowed. The allowances, specified in the last section, are in lieu of commissions. § 3564, Code Civil Proc. The allowance provided for by section 2562 is expressly pro- vided to be awarded to the executor, administrator, guardian or testamentary trustee who is accounting. It is not to be awarded to counsel directly (see ante, p. 281). Matter of Well- ing, 51 App. Div. 355 ; Matter of Crane, 68 App. Div. 355 ; Seaman v. Whitehead, 78 N". Y. 306, 309. In this last case the court by Miller, J., uses the following language: "The Surrogate's Court is one of limited jurisdiction, and is con- fined to such proceedings and the exercise of such powers as are given by the express terms of statutes, and as are inci- dental thereto. Bevan v. Cooper, 72 N. T. 317. The power of the Surrogate in respect to allowances qpon the settlement of estates is conferred by chapter 362, section 8, Session Laws of 1863, which declare that: 'On the settlement of the account of an executor or administrator, the Surrogate shall allow to him for his services, and if there be more than one, shall appor- tion among them, according to the services rendered by them respectively, over and above his or their expenses. . . . And tliere shall also be allowed on each settlement such sum for counsel fee thereon and preparing therefor as to said Surrogate shall seem reasonable, not exceeding the sum of $10.00 for each day engaged therein.' It will be noticed that the allowance is to be made ' to him ; ' that is, to the executor or administrator, 288 SXJKEOGATES' COURTS. and not to his counsel, nor against the executor or administra- tor. There is no authority whatever which warrants a decree in favor of the executor's counsel against the estate which is represented by the executor or against the executor as such. Previous to the statute cited an executor could not charge the estate for a counsel fee, upon the final settlement of his accounts or for drawing up the same in proper and legal form upon such settlement. Burtis v. Dodge, 1 Barb. Ch. 77. Such charges for services to an executor are against him individually and not as executor. Austin v. Monroe, 47 N". Y. 360. " The act of 1863 has not altered the rule and created a lia- bility of the estate to counsel. It was evidently intended to enable the executor or administrator to charge- the estate for such counsel fees as he was obligated to pay upon an account- ing, at the rate prescribed by law. It has been adjudicated that the Surrogate, except in the city and county of New York, has no authority to award counsel fees. Reid v. Vanderheyden, 5 Cow. 719 ; Burtis v. Bodge, supra ; Bevin v. Patchin, 26 N. Y. 441. He can only award taxable costs, and it is error to allow a sum in gross. Reed v. Reed, 52 N. Y. 651." §13. Same subject. — Section 2562 will be strictly construed and where an executor being an attorney himself does not retain counsel to assist in the preparation of his accounts, he is enti- tled to no allowance. Estate of Valentine, 9 Abb. N. C. 313. It is to be noted that upon the accounting contemplated by sec- tion 2562, the costs of course cannot be included as they are to be fixed by the decree which is subsequent to the account, but actual disbursements for counsel fees may be inserted in the account provided they do not exceed the limits fixed by sec- tion 2562, the voucher for such a disbursement will take the form of an affidavit showing the number of days occupied in the trial or necessarily occupied in preparing the account for settlement or otherwise preparing for the trial. Harward v. Hewlett, 5 Eedf. 330, 332 ; Carroll v. Hughes, 5 Eedf. 337 ; Bu Bois V. Brown, 1 Dem. 317. And in this connection it may be stated that time devoted to mere examination of the law, and drawing a decree or attending at the court, is not occupied in the manner contemplated by this section, and no allowance will be made therefor. Matter of Miles, 5 Redf. 110, Calvin, Surr. Such services are assumed to be covered by the $25.00 allowed by section 2561, where there is no contest, or such additional COSTS AND ALLOWANCES. 289 sum up to $70.00 where there is a contest ; and the attendances upon the court are allowed for by the additional $10.00 per diem, where the trial or hearing necessarily occupies more than two days ; the theory of the section is to provide for a means of enabling the accounting party to secure legal assistance and advice in preparing his account. Matter of Peyser, 5 Dem. 244. Nor can it be made to any one except the party account- ing. Matter of Weeks, 5 Dem. 194; Matter of Nockin, 15 K Y. St. Rep. 731. § 14. Counsel fees. — What has been stated in the previous section with regard to allowances, is of course independent of the ordinary counsel fees or compensation paid by executor, administrator, guardian or trustee to counsel retained by them to guide them in the administration of the estate. For such counsel fees executors are entitled to reimbursement from the estate. Some doubt was thrown upon this rule by various contradictory decisions based upon sections 2561 and 2562, but which did not bear directly upon the point. Surrogate Rollins, in 1882, set forth at length his view with reference to the power of the Surrogate under sections 2561 and 2562, in Walton v. Howard, 1 Dem. 103. After referring to those sections, and the restrictions imposed thereby, Judge Rollins says : " It need scarcely be said that the statute, which has thus regulated the authority of the Surrogate to award costs, does not preclude executors from employing counsel to give them necessary legal assistance in the management of their trusts, or from reward- ing the services of such counsel according to their value, and without reference to the limitations of the Code of Civil Pro- cedure. For payment so made, such an officer may, of course, present to the Surrogate his claim for reimbursement out of the funds of the estate. Such claim may justly form, as it of- ten does form, one of the items with which he credits himself in his accounts, and, so presented, it is laid bare to the scrutiny of all persons interested in the estate, may be objected to, like all other items, by any party who chooses to contest it, and will be allowed, or disallowed, according as it is ascertained to have been a proper or an improper disbursement. Qilman v. Gilman, 6 Thomp. & 0. 214, affirmed 63 N. Y. 41." In pass- ing on reasonableness of fees paid, it is proper for the Surrogate to consider the amount involved, and the size of the estate. Matter of Jones, 28 Misc. 599. 19 290 STJBKOGATES' COURTS. Surrogate Karason in 1890 {In re Smith's Estate, 2 Connoly, 418), also passed upon this question using the following lan- guage : " The sole objection raised to the account under consideration is the item therein for services of counsel. The grcuvamen of the objection is that these services were rendered in a proceed- ing for an accounting, and that the personal representative is confined to sections 2561, 2562 of the Code of Civil Procedure for remuneration of his counsel. In other words, that, without regard to the value of the services rendered, the character of the litigation, the size of the estate, the question or the amount involved, he can pay his counsel not exceeding $10.00 per day for the actual number of days spent upon the accounting, and that, if he does compensate him at a higher rate, he cannot be indemnified from the funds of the estate. In proceedings in the Surrogate's Court it is very frequently the case that the services rendered are amply compensated by the statutory al- lowance, and it may happen in some instances that an allowance up to the limit prescribed would be excessive, but the cases are numerous where the allowance which the Surrogate may make upon the entry of decree, by way of costs, is grossly inade- quate. In 1 Conn. Sur. 564, the Surrogate, in his remarks to the bar, commenting on the impossibility in every instance of compensating counsel by an allowance made by way of costs on the entry of decree, said : ' It is the duty of the executor to employ and pay, as a matter of independent private contract between himself and the attorney, such compensation as the attorney fairly earns, and that amount of money should go in his account, and, when presented, would be allowed by the Sur- rogate out of the estate, if fair and reasonable. It is a mere misapprehension on the part of the bar to suppose that attorneys can get adequate compensation under what is known as " a. per diem allowance, . . . . " They should have obtained their pay from their clients before, and put it in the account.' And it is the practice to require information upon this point upon the entry of the decree ; for, in taxing costs, the Surrogate of this county requires information upon the question whether compen- sation has been paid out of the funds of the estate for or on ac- count of the services specified in the bill, and the printed form of affidavit supplied in the court contains an averment on this point. In re Bailey, 47 Hun, 477, the General Term, Judge Parker, COSTS AND ALLOWANCES. 291 writing the opinion, says : ' While the authority of the Surrogate to award costs is thus limited by statute, executors or adnainis- trators are in nowise precluded from employing counsel to give them necessary legal assistance in the management of their trusts, or from compensating counsel according to the value of the services rendered. For payment so made, a claim may be made for reimbursement out of the funds of the estate.' In this case, the services were rendered by the attorney, not for the protection and benefit of the estate, but they were solely for the benefit of the executor in an action brought against him for misconduct in his ofiice as executor, in which contest he was successful." See balance of opinion at page 42i, citing Halsey V. Yan Amringe 6 Paige, 18. See also Matter of Decker, 37 Misc. 527. " This last case, it seems to me, recognizes the difference be- tween allowances to be made to an executor for counsel fees as remuneration for services rendered, and the taxable costs which may be awarded against one party in favor of another. In other words, it recognizes the difference between costs, as such, and the sum included in the account for services rendered by coun- sel. While it would not be proper for the Surrogate to make an allowance of the character claimed in this case to be charged against a contestant, it would be proper for the executor to pay his counsel such amount, if justified by the proof of services performed. To present the idea in a different form, should the Surrogate determine that one or the other of the parties to the contest should be charged with costs of the proceeding, he could only charge him with the taxable costs at the rate specified in the sections of the Code, and it would be improper to charge him with whatever sum might be a suitable reward for the attor- ney's services. This is in analogy with the procedure in common- law courts. A successful plain tiff, for instance, does not recover from the defendant for costs the entire sum, which he, the plain- tiff, may be required to pay his counsel, but only statutory costs. And it is elementary that costs are not intended as indemnity, but only partial reimbursement. In the case of Wilcox v. Smith, 26 Barb. 316, the court said : 'It seems to be well settled that an executor or administrator is not entitled to charge the estate he represents with a counsel fee paid by him upon the final set- tlement of his accounts before the Surrogate, or for drawing up his accounts in a proper and legal form on such a settlement ; 292 SUKKOGATES' COUBTS. and also that the Surrogate has no authority to make an arbi- trary allowance to him in lieu of the compensation directed by the statute to be paid to advocate and proctors in Surrogates' Courts, where the sum is to be paid as costs in the suits or pro- ceeding, either by the adverse party or out of the fund in litiga- tion. Burtis V. Dodge, 1 Barb. Ch. 77 ; Halsey v. Van Amt^inge, 6 Paige, 12 ; Western v. Romaine, 1 Bradf . 37. This rule does not conflict with the one, now statutory, which authorizes the Surrogate to allow executors and administrators "for their actual and necessary expenses," which are " just and reasonable," in the management of the estates committed to them (see 2 E. S. 93, § 58 ; Laws, 1849, chap. 160), such as expenses incurred by them in the employing agents and clerks, where their services are beneficial to such estates {Ma Whorter v. Benson, Hopk. Ch. 28 ; Yanderheyden v. Yanderheyden, 2 Paige, 287 ; Matter of Zivingston, 9 Paige, 440 ; 2 Den. 575 ; Glover v. Holley, 2 Bradf. 291, 294), and such cases as costs paid in actions brought by them in good faith to recover debts supposed to be due to their decedents, when the results show that different modes of pro- ceedings would have been more beneficial to the parties inter- ested in the estates. Collins v. Hoxie, 9 Paige, 81. The two rules already mentioned harmonize, and they are founded on solid reasons. It is not often that executors or administrators need the services of counsel in making final settlements of their accounts before the Surrogate, if they have properly managed the estates in their hands, and are diligent in making such set- tlements ; and where they are negligent, or permit their accounts to become confused, or sufl'er the estates under their control to decrease unnecessarily, they ought to pay counsel out of their own funds for assisting them in closing up their trusts. And the reasons are too obvious to be stated which uphold the rule that permits the Surrogate to allow them all actual and necessary expenses incurred by them, which appear reasonable and just, in bringing and defending actions, in good faith, and the expec- tation of benefiting the estates under their control, and in man- aging such estates solely for the benefit of those interested in them.' In Burtis v. Dodge, 1 Barb. Ch. 77, referred to by the court above, the executor charged in his account $50.00 as a fee for his counsel upon final settlement. The court held (page 91) : ' Neither was the executor entitled to charge the estate with a counsel fee upon the final settlement of his account before the COSTS AND ALLOWANCES. 293 Surrogate, nor for drawing up his accounts in a proper and legal form on such final settlement. The whole was a part of the proceeding for the settlement of the account of the executor ; and the statute having fixed the allowances which were to be made to advocates and proctors in Surrogates' Courts, when they were to be paid as costs in the suit, either by the adverse party or out of the funds in litigation, the Surrogate is not au- thorized to make an arbitrary allowance to the executor in lieu thereof. Here, the Surrogate had the power to award costs to the executor, to be paid out of the estate of the testator, or by Burtis personally, if he thought this final accounting had been rendered necessary by his perverseness. He had not thought proper to do so in this case, except to the extent of his own fees, which he has awarded against Burtis personally, by deducting them from the balance found due to him upon the accounting. If it was a proper case to allow the- executor for the expenses of his proctor and advocate upon the accounting, the Surrogate should have taxed their costs at the rates of allowance fixed by the act of 1837.' In Osborne v. MoAlpine, i Redf. 6, Surrogate Calvin took occasion to condemn the practice theretofore pre- vailing of making an allowance to counsel for executor, etc., on final accounting, to cover the professional services rendered dur- ing the progress of administration, and prior to the proceeding initiating the final account. He said : ' If the representative of an estate shall employ counsel, which he clearly has the right to do, it is the duty of such counsel to present his account for pay- ment before the final accounting, and for the representative to fix upon the amount which is reasonable to be paid, and pay it on his own responsibility, and credit himself with such payment in his final accounting. This will enable the executor in the first place to scrutinize the charges, and will give the parties in interest an opportunity to interpose objections, if it shall appear to be exorbitant.' In Carroll v. Hughes, 5 Eedf. 337, an ac- counting party claimed credit for the sums paid for counsel fees, and the Surrogate held that so much of the charge for legal ser- vices as related to the accounting must be separately stated, so that the court may judge whether it exceeds the limit fixed by section 2562 of the Code, and there should be proof by affidavit of the number of days necessarily occupied in preparing the account for settlement. In Matter of Miles, o Eedf. 110, an account was had upon the application of a legatee. The peti- 294 STJKROGATES' COURTS. tioner and respondent were the only parties interested in the estate, and for that reason Surrogate Calvin held that it was a ' judicial settlement.' He held that the executors were entitled to $25.00 and three days for preparing account, but that they were not entitled to an allowance for attendance at court, exam- ination of the law, and the drawing and settling of the decree, for the reason that they were not devoted to ' preparation for the trial.' He says : ' The theory of the codifiers seems to have been that the $25.00 should cover all the proceedings, except the prep- aration of the account, where no trial was had ; unless, perhaps, where objections were filed, and reasonable preparation made, and, before the trial commenced, the objections were with- drawn.' Ghatfield v. Hewlett, 2 Dem. 191, Avas a contest over the substitution of an attorney. ISTo question whatever was made but that the retiring counsel was entitled to a lien for whatever his services might be worth, independent of the per diem allowance under the Code. None of the authorities cited by contestant seem to maintain his position, and independent investigation has not disclosed any reported decision in conflict with the opinion I have formed. Until I am differently in- structed by the Appellate Courts, I shall hold that an account- ing party is not confined to the sections of the Code (2561, 2562) in remunerating his counsel, but may expend such sums as he deems proper in that behalf, to be included in his accounts, and the correctness and propriety of which may be contested by the persons interested. I am supported in this conclusion by the clear distinction made by the legislature in its provisions with reference to the allowance to special guardians, and to the allowance made to an executor, administrator, or freeholder on the sale of real estate." § 15. Taxable disbursements in Surrogates' Courts. — Sec- tion 2559 already quoted provides that costs when awarded by a decree include all disbursements of the party which might be taxed in the Supreme Court. It will have been seen from the preceding section that counsel fees as such are practically to be included in the executor's account as disbursements, or as Sur- rogate Ransom said in his speech to the New York Bar on the opening of his court, January 3, 1889, that it is a misapprehen- sion on the part of the bar to suppose that attorneys can get ade- quate compensation under what is known as the per diem allowance. " They should have obtained pay from their clients COSTS AND ALLOWANCES. 295 before and put it in the account." Viewed however as dis- bursements they must be reasonable so that in the event of con- test they will stand the scrutiny of the objecting parties in interest and of the Surrogate himself ; for example in the Coll- yer case, 1 Connoly, 546, Surrogate Coffin rejected as improper numerous disbursements made by an administrator as counsel fees. The headnote of the case reads as follows : " The administrator of an estate will not be allowed the fol- lowing expenses : " Counsel fee paid to an attorney for consultations of the ad- ministrator, next of kin, before his appointment, as to the selection of an administrator, such appointment being without a contest. " Payment to counsel for attendance and advice as to the making of an inventory. Pullman v. Willets, 4 Dem. 636. " Payment of retaining fee to an attorney. Hanley v. Singer, 3 Dem. 589 ; Mygatt v. Wilcow, 45 N. Y. 306. " Payment of counsel fee in a proceeding for the revocation of the will, in which the administrator appeared in his repre- sentative capacity as well as next of kin, where he was a nec- essary party only as next of kin ; especially -where his attorney has received costs which he had not credited against the charges for services to the administrator. " A large amount of money, $3,000, paid to a young attorney who was not retained by the administrator, but who, by his persistent attendance in the proceeding, was finally recognized by the administrator as one of the counsel, such expense not appearing to be necessary or reasonable. " Searching for evidence by the administrator's attorney for the purpose of beginning actions. See also Matter of Van Buren, 19 Misc. 373. " A sum paid as counsel fees for services upon furnishing a new bond on the release of one of the administrator's original bondsmen. " Fees to an attorney for services rendered necessary by the attorney's remissness. " A- charge of $20.00 a day by the attorney of the adminis- trator for attending sessions of a reference where nothing was done but to adjourn. (This charge was reduced to $10.00 for each of such sittings.)" The preparation of an account is often a difficult matter but 296 STJKEOGATBS' COURTS. it is well settled that it is the duty of the executor to prepare his account, unless he can show that such preparation would be impossible owing to the volume of the account, or that its nature required the employment of an accountant, but not be- cause of his not having the leisure to devote to its preparation. Matter of Quinn, 1 Connoly, 381, 388. Nor where the com- plication of the preparation of the account is caused by the fact that the executor did not keep proper books of account. O'Ueilly v. Meyer, 4 Dem. 161 ; Estate of Wilcox, 11 Civ. Proc. K. 115 ; Matter of Woodard, 13 N. Y. St. Kep. 161. But if an executor can satisfy the court that the account was such as to justify the employment of an accountant, a disbursement for that purpose will be sustained, but the burden of proof is upon the accounting party. TJnderhill v. Newburger, 4 Eedf. 499, 506. As a general rule clerk hire cannot be allowed as a disburse- ment (Fowler v. LocTewood, 3 Redf. 465), but where the estate is large and in a condition necessarily requiring some assistance from an agent or clerk, to give it proper attention, the expense of such agent or clerk is a proper charge upon the estate. Bohde V. Bruner, 2 Redf. 333, 339, citing Vanderheyden v. Van- derheyden, 2 Paige, 287 ; Cairns v. Chaubert, 9 id. 160. Surrogate's Court, County of Westchester. Bill of costs. In the Matter of the Judicial' Settlement of the Account of Deceased. COSTS. DISBXJESEMBNTS. Costs pursuant to section For serving citation on 2561 of tlie Code of Civil parties . . . . $ Procedure . . . For publication citation Contest . . . pursuant to order dated No contest . . . the day of 18 . Days occupied in the For referee's fees upon trial or hearing, less reference under order two, and less adjourn- dated the day of 18 . ments For Appraiser's fees Motion for new trial For Stenographer's fees . Costs upon trial by jury For affidavits and acknowl- Costs upon appeal . edgments .... AUowance to accounting For postage party under section 2262, For certified coplea orders COSTS AND ALLOW A NOES. 297 Note. Where the proceeding is ooe for the sale of a decedent's real estate, an allow- ance maj' be made under §2563 of the Code, which see. Code of Civil Procedure, viz; (N'ote.) Days occupied in trial or hearing, less adjourn- ments Days necessarily occupied in preparing account . Days necessarily occupied in otherwise preparing for trial Total Costs and Al- low axcb . . $ DiSBUKSEMENTS For certified copy decree . For satisfaction of decree. For certificate of Filing Satisfaction For necessary copies of papers For attendance of wit- TOTAL . $ ■k,| SS. State of New York, County of being duly sworn, says that he is the attorney and counsel for in the above entitled proceeding ; that the fore- going disbursements have been actually made, or will be necessarily incurred therein, by or in behalf of the said That such disbursements are correctly stated, and are for reasonable and necessary expenses in this proceeding. Deponent further says that the time stated in the foregoing bill of costs as having been occu- pied as therein specified, was actually, substan- tially and necessarily so occupied and employed in this matter by deponent. That no compensation has been paid or given, out of the funds of the estate of the said de- ceased, for or on account of any of the services in the foregoing bill of costs specified. Sworn to before me this ) day of 189 . j Part III. CHAPTEE I. PEOBATE PROCEEDINGS — PEELIMINAEIE8 TO PEOBATE. § 1. Deposit of wills.— Provision has been made by law that any person who has made a will may deposit the same for safe- keeping with any county clerk, or any Surrogate, or with the register of deeds in New York County. The formalities to be observed are set out in the statute. 8 E. S. part III, title 3, chapter VII, art. 7, sections 67-70, 8th ed. p. 2663. Section 68. Such will shall be inclosed in a sealed wrapper, so that the contents thereof cannot be read, and shall have in- ' dorsed thereon : the name of the testator, his place of residence, and the day, month and year when delivered. It must not, on any pretext whatever, be opened, read or examined, until deliv- ered to a person entitled to the same as provided in the statute. Such a person is carefully defined by section 69. Such will shall be delivered only 1. To the testator in person ; or 2. Upon his written order, duly proved by the oath of a sub- scribing witness ; or 3. After his death, to the persons named in the indorsement on the wrapper of such will, if any such indorsement be made thereon ; or 4. If there be no such indorsement, and if the same shall have been deposited with any other officer than a Surrogate, then to the Surrogate of the county. Section 70. If such will shall have been deposited with a Surrogate, or shall have been delivered to him as above pre- scribed, such Surrogate, after the death of the testator, shall publicly open and examine the same, and make known the con- tents thereof, and shall file the same in his office, there to remain until it shall have been duly proved, if capable of proof, and then to be delivered to the person entitled to the custody thereof ; (298) PROBATE PROCEEDINGS — PRELIMINAEIES TO PROBATE. 299 or until required by the authority of some competent court to produce the same in such court. If a testator files his will in the foregoing manner, for safe- keeping he pays a nominal fee (six cents to a county clerk or register, nothing to a Surrogate). § 2. Producing and filing the will — The will of a decedent should be filed by the person petitioning for its probate when- ever possible. But where it is in the custody of a safe deposit company or a person who for any reason declines to produce it, it has been held that the Surrogate has no power to compel the production thereof by order. Matter of Foos, 2 Dem. 600. The practice is to file the petition for probate, whereupon a subpoena duces tecum will be issued, directed to the proper persons, re- quiring them to produce the will in court upon the return day of the citation. Id. p. 601. The Surrogate has the power, under section 2481, subdivision 3, to enforce obedience to the requirements of such a subpoena. Where, however, the will is a foreign will, and cannot be produced, it may under certain restrictions, be substituted, for probate purposes, by a copy certified pursuant to the provi- sions of chapter 731 of the Laws of 1894, which is as follows : " Admission of will of non-residents to probate, etc. " The last will and testament of any person being a citizen of the United States, or, if female, whose father or husband pre- viously shall have declared his intention to become such citi- zen, who shall have died, or hereafter shall die, while domiciled or resident within the United Kingdom of Great Britain and Ireland, or any of its dependencies, which shall affect property within this State and which shall have been duly proven within such foreign jurisdiction, and there admitted to probate, shall be admitted to probate in any county of this State wherein shall be any property affected thereby, upon filing in the oifice of the Surrogate of such county, and there recording, a copy of such last will and testament, certified under the hand and seal of a consul-general of the United States resident within such foreign jurisdiction, together with the proofs of the said last will and testament made and accepted within such foreign jurisdiction, certified in like manner ; and letters testamentarj'^ of such last will and testament shall be issued to the persons named therein to be the executors and trustees, or either, thereof, or to those of them who, prior to the issuance of such letters, by formal 300 SUKBOGATES' COUETS. renunciation, duly acknowledged or proven in the manner pre- scribed by law, shall not have renounced the trust therein devolved upon thera ; provided, that before any such will shall be admitted to probate in any county of this State, the same proceedings shall be had in the Surrogate's Court of the proper county as are required by law upon the proof of the last will and testament of a resident of this State who shall have died therein ; except that there need be cited upon such probate pro- ceedings only the beneficiaries named in said will." Where the foreign will is not in the custody of a court having jurisdiction, the production of the original cannot be dispensed with. So held, where it was shown to be held by a foreign notary. Dies's Will, 56 Barb. 591. But if the original be produced before a commissioner, duly appointed to take the testimony, it is held to be equivalent to production before the court ap- pointing him. Russell v. Hartt, 87 N. Y. 18 ; Matter of Dela- plaine, 45 Hun, 225; Matter of Camero7i, 47 App. Div. 120, 125. See ante, p. 152. A lost or destroyed will, also, may be proved in a proper case. See § 2621, Code Civil Proc. The object in directing the filing of the will is obvious. Moreover, in con- tested cases, the contestant is entitled to inspect, under proper safeguard, the instrument propounded. Where a will is exe- cuted in duplicate or triplicate the Surrogate may direct the filing of two or more of the copies. Contestants may desire to have the will photographed, par- ticularly in cases where the signature is disputed, and claimed to have been forged. The Surrogate has power to allow this to be done {Matter of Monroe, 1 Connoly, 496, Ransom, Surr.), or even to have chemical tests made of the ink. Ibid. Ap- plication should be made in compliance with the practice pre- scribed in sections 803-809 of the Code. Matter of Woodward, 28 Misc. 602. § 3. Who may propound the will ? A person designated in a will as executor, devisee, or leg- atee, or any person interested in the estate, or a creditor of the decedent, or any party to an action brought or about to be brought, and interested in the subject thereof, in which ac- tion the decedent, if living, would be a proper party, may present to the surrogate's court having jurisdiction, a written petition, duly verified, describing the will, setting forth the PBOBATB PROCEEDINGS — PRELtMlN-ARIES TO PROBATE. 301 facts, upon which the jurisdiction of the court togranl probate thereof depends, and praying that the will may be proved, and that the persons, specified in the next section, may be cited to attend the probate thereof. Upon the presentation of such a petition, the surrogate must issue a citation accord- ingly. § 2614, Code Civil Proc. But, once the will is offered for probate, the proceeding is beyond the control of the proponent (JToyt v. Jackson, 2 Dem. 443, 456 ; Greeley's Will, 15 Abb. Pr. IST. S. 393), in this sense that it becomes then the proceeding, not of such proponents only, but of all persons interested in the estate under the will, whose right it is that the instrument shall be proved, and neither the proponent nor the Surrogate can arbitrarily terminate the pro- ceeding so as to deprive any party thereto of his right to sup- port the probate, for the proceeding is one in rem. Matter of Lasak, 181 N. Y. 624; Paxton v. Brogan, 12 N. Y. Supp. 563. After the petition is filed, and the proper parties are cited, the Surrogate has jurisdiction of both subject-matter and parties. If the proponent decides not to prove the will, any other party may become the actor and proceed to offer witnesses in support of the will. Matter of Lasak, supra, citing C. C. P. § 2617. If all the parties are of full age and should join in asking that the proceedings be dismissed, it would be the duty of the Surrogate to dismiss the proceeding. But so long as any per- son cited is before the Surrogate in support of the will, he has no right, upon the motion of any other party, arbitrarily to arrest or dismiss the proceeding. It is a proceeding in behalf of all the parties interested to prove the will. If the proponent should die, the jurisdiction would not be divested {Brick v. Brick, 66 N. Y. 144), nor would the proceeding abate. Laferty v. Lafferty, 5 Redf. 326. If he left successors to his interest they would have to be brought in and be made parties to the proceeding as persons interested in the estate. Matter of Lasak, 131 N. Y. 624, 627 ; MatUr of Oovers, 5 Dem. 40 ; Van Alen V. Hewins, 6 Hun, 44. § 4. Persons interested. — What is meant by "persons in- terested " in an estate has heretofore been discussed (p. 119, ante, q. v.). ■ And the Surrogate has power to determine whether the petitioner is a person entitled to propound the will 302 SUBKOGATES' COURTS. before going on with the proceeding. It may be added that it has been held by the Court of Appeals {Russell v. Hartt, 87 N. Y. 19, 21), that the right to present a will for probate may be by a person possessing it transferred to another who as attorney or agent may act for and in the stead of the party interested. In the case cited, one Janet Kussell was named in the will as legatee, as devisee and as executrix — thus pos- sessing a threefold right to ask for its probate. By a power of attorney duly and properly executed, reciting the circum- stances which made it necessary, she appointed one Hartt, her agent and attorney in her name, place and stead, to present the will or duly authenticated copies thereof to the proper Surrogate for probate and to have the same duly proven as a will of real and personal estate, and to ask for and receive letters of admin- istration, and take possession of and administer upon the estate of the deceased. Held that the Surrogate was justified in act- ing upon a petition filed by Hartt, and had full jurisdiction to entertain the proceeding. If the person interested is a woman, whether married or sin- gle, she may petition for probate, and if married her husband need not join in the petition. Where the petition for probate is filed by a creditor of the testator, it has been held that a mere allegation that the peti- tioner is a creditor would be sufficient unless put in issue. If denied, then he must be required to set forth facts showing that he is such creditor. Oove v. Harris, i Dem. 293, citing Creamer v. Waller, 2 Dem. 351. § ia. Will must be propounded. — It is the duty of an exec- utor to propound liis testator's will (Schouler on Ex'rs & Adm'rs, § 53 ; Thorn v. S/ieil, 15 Abb. N. S. 81), and if probate be refused he may carry the matter to the Court of Appeals (see p. 231, ante), and if successful is entitled to his counsel fees and disbursements thus incurred {Matter of Blair, 28 Misc. 611), to be adjusted upon his accounting. S. C, modified on ap- peal, 49 App. Div. 41T. See also 34 Misc. 444. And any party finding a will, in which he is interested, should propound it. Matter of Griswold, 15 Abb. 299; Boynton v. Laddy, 20 N. Y. St. Eep. 148. But the executor cannot be compelled to take an active part in the probate. If he files the will and the petition for probate, he may decline to examine witnesses or to support the will in case of contest. He cannot cause the dis- PEOBATB PROCEEDINGS — PfiELIMINAEIES TO PROBATE. 303 missal of the proceeding except all parties cited are of full age and consent. Matter of Lazak, 131 N. Y. 624. But if he takes such a negative stand any other party interested may under- take the burden of proving the will. And if none of the parties is willing so to do it is the duty of the Surrogate to do it under section 2618. Matter of LazaTc, 1 Connoly, 486, 489. The exec- utor is not ex officio beneficially interested under a will, and yet he cannot be permitted to deprive those who are of their rights by blocking the proceedings. If he is recalcitrant any other party may become an aotor. Matter of Lazak, supra, Cofiin, Surr. Persons discovering a codicil to a will which is propounded for probate should, if interested thereunder, oifer it for probate in the proceeding pending for the probate of the original will. Carle v. Underhill, 3 Bradf. 101. If several persons produce independent instruments and severally petition for their pro- bate as the last will of the same decedent, the proceedings will be consolidated in one, and the Surrogate will determine whether they are in harmony with one another, so as, when taken to- gether, to constitute one last will, or whether they are entirely independent so that only one can stand. Van Wert v. Benedict, 1 Bradf. 114, 119. Such an inquiry must establish one paper as the last will and the others either as codicils to it, or as in- valid by being revoked or otherwise. Ihid., Opinion of Brad- ford, Surr., and cases cited at p. 119. § 5. Preliminary inquiries. — Before filing the petition it is well to ascertain with accuracy the names and addresses of all persons interested, with their relationship — degree of kinship — to the decedent. The delays occasioned by bringing in, subsequently, necessary parties, who might readily have been ascertained in the first instance, is sufficient warrant for this suggestion. The drafting of a family tree on which all the next of kin and all infants, especially issue of deceased parents, entitled by representation, are shown, will be found of great service in the preliminary steps before the probate clerk or Surrogate in contested cases. CHAPTEE II. REVOCATION OF WILLS. (See post, Mistake, p. 478.) § 1. Revoked will not entitled to probate. — A will validly revoked (as below set forth) is no will, and cannot be proved as the decedent's last will and testament. But unless the pro- ponent knows the circumstances to be such as to constitute valid revocation, as for example, that the date of the will is prior to the marriage of testatrix {Brown v. Clark, 77 N". Y. 369, 2 E. S. 64, § 44), which thus destroys the will, he should propound the paper and let the court determine. Of several papers, all purporting to be complete wills, the last in point of time should be offered. But if any doubt exists as to the character of papers of a testamentary character found as to whether they may or may not be codicils they should be offered. § 2. The provisions of the Eevised Statutes covering revoca- tion of wills are still in force and are as follows : " Written wills, how revoked or canceled. " No will in writing except in the cases hereinafter men- tioned, or any part thereof, shall be revoked or altered other- wise than by some other will in writing or some other writing of the testator declaring such revocation or alteration ; and executed with the same formalities with which the will itself was required by law to be executed, or unless such will be burnt, torn, canceled, obliterated or destroyed with the intent and for the purpose of revoking the same by the testator him- self, or by another person in his presence by his direction and consent, and when so done by another person, by the direction and consent of the testator, the fact of such injury or destruc- tion shall be proved by at least two witnesses." 2 E. S. part II, chap. 6, title 1, art. Ill, p. 64, § 42. " Will, when revoked hy marriage and hirth of issue. " If after the making of any will. disposing of the whole estate of the testator, such testator shall marry and have issue of such marriage, born either in his lifetime or after his death, and the wife or the issue of such marriage shall be living at the death (304) BEVOCATION OP WILLS. 805 of the testator, such will shall be deemed revoked unless pro- vision shall have been made for such issue by some settlement or unless such issue shall be provided for in the will or in such way mentioned therein as to show an intention not to make such provision and no other evidence to rebut the presumption of such revocation shall be received." Id. % i3 ; Matter of Oall, 32 N. Y. St. Rep. 695. But the adoption of a child does not operate to revoke a prior made will. Matter of Gregory, 15 Misc. 407. " Will of unmarried woman, revoked hy marriage. " A will executed by an unmarried woman shall be declared revoked by her subsequent marriage." Id. § 44. See also sections 45, 46 and 47, as to effect on previous made will of bonds, agreements, covenants, charges, incumbrances, conveyances, settlements, deeds or other acts of the testator affecting the property devised in such will. § 3. Express words of revocation. — Where by a conveyance, settlement, deed or other act of a testator by which his estate or interest in property previously devised or bequeathed by him, shall be altered but not wholly divested, and in the instrument by which such alteration is made, intention is declared that it shall operate as a revocation of such previous devise or bequest, it will so operate, but not otherwise. In the absence of such express intention the devise or bequest made prior to such con- veyance or deed shall pass to the devisee or legatee, the actual estate or interest of the testator which would otherwise descend to his heirs, or pass to his next of kin. See § 47, art. Ill of chap. 6, part II, Revised Statutes, Banks's 8th ed. p. 2549. But, if the provisions of the instrument by which such altera- tion is made are wholly inconsistent with the terms and nature of such previous devise or bequest, such instrument shall oper- ate as a revocation thereof, unless such provisions depend on a condition or contingency and such condition be not performed, or such contingency do not happen. Id. § 48. If a testator shall duly make and execute a second will after the making of any will, the destruction, cancellation or revocation of such sec- ond will shall not revive the first, unless it appear by the terms of such revocation that it was his intention to revive and give effect to his first will, or unless after such destruction, cancel- lation or revocation, he shall duly republish his first will. Id. §53. 20 306 subrogates' coukts. In Matter of SticTcney, 161 N. Y. 43, 45, aff'g 31 App. Div. 383, the court observes : " Obviously, the first sentence of section 53 relates only to the revocation iu writing provided for by section 42, and, therefore, to revive a first will under that provision, a writing executed with the same formalities, as are required for the execution of a will, must exist in which the testator in express terms declares his intention to revive and give efifect to such former will. The second sentence of section 53 provides the only other method of reviving a prior will where it has been revoked by a second which has been de- stroyed, and requires that when the revocation of the second has been by its destruction the first will must be republished by the testator." Hence the court held that republication must be made to the very witnesses who attested the will thus sought to be republished. § 4. Necessity of revoking clause in later will — The mere execution of a later will has been held not to operate as a revo- cation of the prior will, unless it contains an explicit revoking clause or is wholly inconsistent with the prior will ; thus, where a will purports to dispose of all the testator's property, it is in such case clearly inconsistent with the prior will, and will be deemed to revoke it. Simmons v. Simmons, 26 Barb. 68. See section 8, below. The reason for this rule is that a later will disposing of other property or only a portion of the decedent's property is to all intents and purposes nothing more than a cod- icil, and only operates to change pro tanto the dispositions made by the testator in the prior document ; in other words, the incon- sistency between the prior and later instrument must be com- plete. This necessarily leads to the further statement that as a codicil in order to become operative, must be shown to have been executed with all the statutory formalities as if it were an inde- pendent will, so a subsequent will cannot operate to change or revoke a previous will, unless it is executed with the same for- malities with which the will itself was required by law to be executed ; thus where {Nelson v. The Pah. Adm., 2 Bradf . 210) a testator selects the mode of revocation by writing, he will fail in accomplishing his purpose if he dispenses with any of the necessary formalities. In the case just cited, the testator made four unattested Avills, three others apparently duly executed, and several papers of revocation. Three of the attested revoca- tions were wills signed, but not attested ; three were mere dec- EBVOCATION OP WILLS. 307 larations of revocation subscribed by the testator, but without the names of subscribing witnesses. The court held that while they expressed as strongly as anything could a determination to rescind every instrument of a testamentary character ever exe- cuted by the testator, and while they expressed this repeatedly, showing a continued and earnest intention to revoke, neverthe- less the law must govern. " Th(j testator might have revoked by burning, tearing, canceling, obliterating or destroying, but he selected the mode of revocation by writing, in which he has failed to comply with the law and these formal acts have no validity." See also Zeayoraft v. Simmons, 3 Bradf . 35, 43 ; McLoshy v. Beid, 4 Bradf. 334, where the Surrogate admits a second will not executed with the formalities necessary in order to dispose of real property in the State of New York to be suffi- cient as a will of personal property, admitting the prior will, which had been executed, as a will of real property. See also, Barry v. Brown, 2 Dem. 309, and Mairs v. Freeman, 3 Redf. 181, holding that where a party offering a subsequent will to that propounded, which it was claimed operated as a revoca- tion, the burden of proof is on such party, and he is required to show the due execution of that instrument in order that it may constitute a revocation. Where a codicil was written at the foot of the will and made such dispositions as to blend the codicil and will into one testamentary disposition, a revo- cation of the codicil by erasure of the signature was held to re- voke the will as well. Matter of Brookman, 11 Misc. 675. In Matter of Barnes, 70 App. Div. 523, it was held that pro- bate of a will would be denied on the ground of its revocation when satisfactory proof was adduced that a will revoking the will offered for probate was duly executed, even though the revoking will was not and could not be produced, and was not in fact probated. § 5. Reviving prior will. — The provision of section 53, arti- cle III, chapter 6, part 2, Revised Statutes, 8th ed. p. 2550, above quoted, that the destruction, cancellation, or revocation of a second will shall not revive the first will, unless it appears by the terms of such revocation that it was the testator's inten- tion to revive and give effect to his first will, or unless he shall duly republish his first will, must be taken to be limited in its application to the exact cases covered by the statute, and for this reason, that cases are not infrequent where the testator is 308 subrogates' courts. known to have made a second will, which, however, cannot be found. In sach case if the prior will be propounded as the last will of the decedent, it will be admitted to probate in the ab- sence of proof : {a) That there was a later will ; {b) That it was properly executed (by which of course is meant that all elements of proper execution were present includ- ing capacity, etc.) ; (c) That the later will contained a revoking clause or, {d) Such proof of the contents of the later will as show in- consistency with the provisions of the former will. There is no doubt, however, as to the jurisdiction and power of the Surrogate to receive proof that the prior will was revoked by the subsequent will, and further to receive, proof that the subsequent will had been fraudulently destroyed ; or, that hav- ing been properly executed, it was destroyed by the testator when his mind had become so impaired that he was incompe- tent of performing a testamentary act, which incompetency of course taints with invalidity the act of revocation as v\rell. Matter of Waldron, 19 Misc. 333. Therefore, while it may be perfectly clear that the second will was duly made and exe- cuted, and that it was destroyed, or canceled or revoked, or where there is an absence of proof as to the contents of a later will, the Surrogate is without power to say that the second will was in fact a revocation of the first and the prohibition of the statute against reviving the first will is not infringed ; in- asmuch as there is no proof that the first will was not continu- ous in its operation as a declaration of the testator's testamen- tary intention. Nelson v. McGiffert, 3 Barb. Ch. 158, 164. So in Matter of Stickney, 161 N. Y. 42, the court held that a will that has been revoked by a subsequent one which is de- stroyed by a second one, is not revived by his declaration of desire to revive the first one, unless such declaration be made to the original subscribing witnesses. § 6. Codicil to earlier will. — A curious complication may arise where a testator executes two wills, and after executing both, makes a codicil to the earlier will. The question then arises, what is the effect of such codicil upon the intermediate will, and can it revive the earlier will revoked by the later will? The effect of a codicil to a will, revoked by a later will, is to KBVOCATION OF WILLS. 309 revive and republisli the earlier will ; which speaks as of the date of the codicil. It also operates by implicatioa to revoke the in- termediate will. In other words the codicil and the earlier will, read together, constitute the final testamentary disposition of the estate. Matter of Campbell, 170 N. Y. 84, aff'g 67 App. Div. 627. See also Matter of Conway, 124 N. Y. 455 ; Caul- field V. Sullivan, 85 IST. Y. 153 ; Matter of Miller, 11 App. Div. 337 ; 1 WiUiams on Executors, 6th Am. ed. pp. 251, 252 ; 1 Jarman on Wills, 5th Am. ed. pp. 114—191 ; Brown v. Clark, 77 N. Y. 369. In the case of the Will of Pinckney, 1 Tucker, 436, the learned Surrogate considers this question briefly, and states that it is not altogether without precedent. He refers to an English case (3 Vesey R. p. 402) where the testator executed a codicil in 1776, referring to a will of 1752. A devisee of real estate under a second and later will of 1756, filed a bill to sus- tain that will. The codicil was held to cancel the intermediate will (citing also Croshie v. McDonald, 4 Vesey R. p. 616). He also cites another case {Hall v. Tokeler, 2 Eobt. p. 318) where the decedent executed two wills, destroyed the earlier one an- imo revocandi, and then executed a codicil showing an inten- tion to revive it ; and it was held that the codicil was inopera- tive to revive the former will which had been destroyed but did operate to revoke the later will. The facts before Surrogate Tucker were that the decedent had executed a will in June, 1861, and another March 16, 1863, and a codicil March 28, 1863, which in terms was expressed to be a codicil to the will of June, 1861 ; the will of June, 1861, was found with the seal and signature cut out ; which consti- tuted cancellation under the statute ; due execution was proved of the other will and of the codicil; it was held that the codicil being expressly declared to be a codicil to the will of June 21, 1861, could not be attached to the later will, and the effect of the codicil was to revoke and abrogate the later will, because it republished the earlier will as testator's last will ; and since the codicil could not operate to revive the earlier will, as it had been canceled, both wills were revoked and abrogated. The Surrogate further held that inasmuch as the codicil pro- pounded was not suflicient to stand alone as a testamentary disposition, intestacy must be decreed. So the case may arise where the second will formally revokes the first will, and later 310 SUKEOGATES' COURTS. the testator executes a codicil to the will so revoked. This has been held to revive the prior will, provided of course the codicil was duly executed. Knapp's Will, 23 N. Y. Supp. 282. Jarman in his work on Wills, says (at p. 188) that the law in England is that "if a testator makes a will in 1830, and at a subsequent period, say 1840, makes another will inconsistent with the former, but without destroying such former will, and afterwards makes a codicil which he declares to be a codicil to his will of 1830, this would set up the will so referred to in opposition to the posterior will." If the codicil is properly executed, published, etc., the will revoked and revived needs no republication. The codicil and will are by the reference made one instrument, and though the original will was informally executed it would be cured and corrected by due execution of the codicil. Storms' s Will, 3 Redf . 327, citing Mooers v. White, 6 Johns. Ch. 374, 375. "Where a testator was improperly prevented from revoking a will, the ancient rule was that the one who so hindered the revocation was rendered thereby unworthy, i. e., he was excluded from par- ticipation. But it is very doubtful whether the prevention of the execution of a codicil by improper means can revoke a pre- vious will. LeoAjoraft v. Simmons, 3 Bradf. 35, 43. § 7. Parol declarations inadmissible. — Where questions of conflicting will and codicil come up, evidences of mistake in the testator's reference to one of two wills in a codicil dating subsequently to both, is inadmissible (see Matter of Pinch- ney, supra), nor are subsequent declarations by testator that he had revoked his will to be allowed in evidence. Ooe v. Kniffen, 2 Johns. 31 ; Dan v. Brown, 4 Cow. 483. For a will cannot be revoked by parol, or in any but the statutory manner, and a will certainly will not be deemed revoked by alleged declara- tions by testator that he did not understand its provisions, nor can such declarations be admitted. Matter of Hammond, 16 St. Eep. 977 ; Shaw v. Shaw, 1 Dem. 21. But where a trust deed, executed with the formalities of a will, purported to re- voke a will, it was held duly revoked. See Matter of BacTcus, 49 App. Div. 410, and the Surrogate's decree (29 Misc. 448), ad- mitting the will to probate was reversed and probate denied. § S. Revoking act must be equally solemn with act re- voked. — To make a subsequent will or a codicil operate to revoke a will, such codicil or will must be an affirmative testa- KEVOCATION OF WILLS. 311 mentary disposition in itself. In the Backus case just cited the trust deed effected a complete disposition of the grantor's property. But the court held that the writing effectual to revoke a will need not be characterized as a will by the per- son executing it. Of course due execution of the later will must be satisfactorily established. Mairs v. freeman, 3 Redf . 181. If the later will be not produced it must be satisfactorily proved by affirmative evidence as to factum and contents. Matter of Williams, 34 Misc. 748 ; Matter of Meyers, 28 Misc. 359. Even though the paper claimed to have a revocatory effect clearly manifests an intention to revoke, that is not suffi- cient. The most satisfactory evidence that the testator had repeatedly and explicitly declared that it was his deliberate design to annul or destroy the will, would not authorize the court to reject the instrument {Delafield v. Parish, 1 Redf. 1, 104, aff'd 25 N. Y. 9, 30, 35), particularly if the testator was physically enfeebled when making the later will. Judge Davis writing the prevailing opinion in the Parish Will case formulated this rule which is concise and clear. See 25 Abb. Pr. 35. " When it is sought to establish a posterior will, to over- throw a prior one made by the testator in health, and under circumstances of deliberation and care, and which is free from all suspicion, and when the subsequent will was made in en- feebled health, and in hostility to the provisions of the first one, in such case the prior will is to prevail unless he who sets up the subsequent one can satisfy the conscience of the Court of Probate that he has established a will. And also the prior will is to prevail, unless the subsequent one is so proven to speak the testator's intentions, so as to leave no doubt that it does so speak them." The Court of Appeals in a much later case {Newcomb v. Webster, 113 N. Y. 191, 196), declared the rule in respect of the effect of a codicil claimed to have revocatory operation. Judge Danforth says : " It may be taken as a well- settled general rule that a will and codicil are to be construed together as parts of one and the same instrument, and that a codicil is no revocation of a will further than it is so expressed. Wesicott V. Cady, 5 Johns. Oh. 343. But if, when regarded as one instrument, it is found to contain repugnant bequests in separate clauses, one or the other, or both, must fail, and there- fore, the rule is that, of the two, the bequest contained in the 312 STJEROaATBs' COTJETS. later clause shall stand. The same principle applies with greater force where there are two distinct instruments relating to the same subject-matter. In such a case an inconsistent devise or bequest in the second or last instrument is a com- plete revocation of the former. But if part is inconsistent and part is consistent, the first will is deemed to be revoked only to the extent of the discordant dispositions, and so far as may be necessary to give effect to the one last made." Citing iV^^-^- son V. MeOiffert, 3 Barb. Ch. 158. Consequently the Court of Appeals held that as the codicil made a new and complete dis- position of the estate, but appointed no executors, both will and codicil should be admitted to probate, that the former was operative so far as to designate the executors, but revoked by the latter as to the disposition of the property. 113 N. Y. p. 197. § 9. Effect of duplicate wills. — It seems that where a will has been executed in duplicate, revocation by the testator of one of such duplicate wills, by cancellation or destruction, will be held to operate to nullify the other, in the absence of proof that the other was within the control of the testator so as to be similarly destroyed. See Asinari v. Bangs, 3 Dem. 385. This of course would not apply to a revocation by an instru- ment in writing. The duplicate will can in such case be treated only as one instrument, and a reference to a will of the given day, or a reference to it as a prior will need not specify that the will is a duplicate will, if the revocation be in conformity with the statute, and express in its items. Biggs v. Angus, 3 Dem. 93, 96. § ^a. Mutual wills. — Mutual wills, unless made in pursu- ance of a contract between the testators, may be revoked by either testator without notice to the other. Edson v. Par- sons, 85 Hun, 263. And such a contract, effectual to prevent revocation, must be affirmatively proven by full and satisfac- tory evidence. 8. C, 155 N. Y. 555. See also ^wo^ v. Sny- der, 27 Misc. 462. An agreement to make mutual wills can be enforced only at instance of a party thereto. Equity will not enforce it at a suit of a third party. Everdell v. Hill, 58 App. Div. 151. § 10. Revocation by obliterating or canceling It is the settled rule that the provisions of the statute in regard to proof of revocation of a will by cancellation or obliteration, contem- REVOCATION OF WILLS. 313 plates the cancellation or obliteration of the whole will. The language of the statute is explicit. It says, " No will or any part thereof shall be revoked or altered unless such will " (not unless such will or such part) " be burnt, torn, canceled, ob- literated or destroyed animo revocandi?'' See section 2, ante. The effect of the words in the statute are that not even a part of the will shall be deemed revoked unless the will itself is de- stroyed, and they forbid the possible inference that a part might be revoked by destroying such part. Lovell v. Quitman, 25 Hun, 537, aff'd 88 N. Y. 377. This, however, must not be taken to mean that a complete destruction of the instrument must be effected ; thus, where a testator in infirm health, feeble in his physical powers, was without sufBcient mental soundness to be capable of a testamentary act, calls for a will previously exe- cuted, tears the paper into fragments and then or thereafter declares that he has destroyed his will in the presence of wit- nesses, it will be held to be a sufficient destruction of the will, the act being clearly proved as well as the intent of revocation. See Sweet v. Sweet, 1 Redf. 451. See further on the point that the mere act of tearing or canceling is not sufficient, Jaakson V. Halloway, 7 Johnson, 394 ; Jackson v. Pattie, 9 id. 312 ; Smith V. Rart , 4 Barb. 2S ; JVelson v. McGiffert, 3 Barb. Ch. 158 ; Perrott v. Perrott, 14 East. 423 ; Willard on Ex. 123. The Revised Statutes provide (2 R. S. 64, § 42) : " ISTo will in writing except in the cases hereinafter mentioned, nor any part thereof, shall be revoked or altered, otherwise than by some other will in writing, or some other writing of the testator, de- claring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed ; or unless such will be burnt, torn, canceled, obliterated or destroyed, with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, shall be proved by at least two witnesses." It will be noted that the statute contemplates a cancellation, either by the hand of the testator, or by the hand of another ; and where, by the hand of another, by testator's direction and consent. Moreover, such cancellation and the direction to can- cel must be proved by at least two witnesses. The statute does 314 StTRROaATES' COTJKTS. not provide for any presumptions, but leaves the oiroumstauces to be proven. Matter of Hopkins, 35 Misc. 102, aflf'd 73 App. Div. 559. In this case the special guardian argued that where a will is found with the signature erased, there arises a presump- tion that it was done by the testator, and that to overcome such presumption there must be evidence that it was done by some other hand, and cited Matter of Philp, 46 ¥. Y. St. Rep. 356 ; Matter of Clark, 1 Tucker, 445, as authorities directly in point, and cited as analogous. Hard v. Ashley, 88 Hun, 103; Collyer v. Collyer, 110 N". Y. 481, where the question was that of an alleged lost will. The court observed : " No one questions but that these cases were correctly' decided upon their own peculiar facts, and it is the facts of each case which control. " The statute was enacted to prevent fraud and not to invite it, therefore such a broad presumption which would make the accomplishment of a fraudulent cancellation the easier would contravene the spirit of the act." And it was held that as the signature was sought to be canceled by vertical marks, proved by expert testimony not to have been made by testator, the will was not duly canceled. (While this work was in press, the Court of Appeals reversed and ordered a new trial, evi- dence of cancellation being insufficient.) See Matter of Brook- man, 11 Misc. 675. In this case the signature was erased by ink lines, and the word " void " in margin installed by testator. Held, will was revoked. In Matter of Akers (not yet reported), the testator wrote at head of , and also opposite signature to his will "This will and codicil is revoked. Jan'y 14, '96. Fred'k Akers." The New York Surrogate held this not sufficient cancellation and probated the will. The Appellate Division affirmed this. In a recent case in Kings County, Matter of Alger, 38 Misc. 143, the testater had drawn across all the provisions of his first codicil, including the signature and attestation clause numerous cross marks in lead pencil and also wrote in on the place of the attestation clause, the words " canceled " and in another place the date, " April 19th, 1895." The second codicil contained several cross marks in lead pen- cil in the first clause thereof, and at the foot of the attestation clause there was written : ' "Brooklyn, April. The codicil in the within is this day 20th, 1895, canceled for personal abuse and ungratefulness on REVOCATIOlf OF WILLS. Bl5 her part. Geo. Alger, 203 12th St., in the city of Brooklyn, N. Y." The words " Geo. Alger " were also written a second time below this. It was proved that the word " canceled " and the date were all in the handwriting of the decedent. The Surro- gate held both codicils to be canceled. He points out the derivation of the word canceled from cancelU, cross-bars or lattice work, and held that where it is apparent that the cross lines had been made by the testator with the evident intention of effecting a revocation, such act is sufficient to work a revoca- tion of the will, citing Matter of JBroohman, 11 Misc. 675. So far as intention to cancel is concerned, there can be little doubt but that in the Akers case, the intention of the testator was clear beyond peradventure, and yet the court, as we think properly, held the revocation not to be according to the statute, and it may thus be doubted whether under Loveil v. Quitman, the decision in the Alger case will stand as to the second codi- cil. See opinion as to meaning of cancellation and cases dis- cussed. The recovered several fragments of a will so torn and sup- posed by the testator to have been destroyed, will be denied probate. When testator desires to revoke part of his will he must resort to the means provided for in the first part of sec- tion 42, quoted in section 2 above, that is to some formal writing executed as therein prescribed. 2 R. S. part II, chap. 6, title I, art. Ill, p. 64, § 42 ; LoveZl v. Quitman, 88 N. Y. 377, 380, Dan- forth, J. ; Ougel v. VoUmer, 1 Dem. 484. So, if the will is found in draughtman's desk, cut in two, there is no presumption of revocation. Matter of Ackeh, 23 Misc. 321. So where a testator having, by will, devised property to his son, whose name was given, it was held that the erasure of the name leaving, however, the word " son " could not operate to revoke the devise. Clark v. Smith, 34 Barb. 140. See, how- ever, Dan V. Brown, 4 Cow. 483, holding that so long as there exists animus revocandi the slightest decree of cancellation will revoke. Where one who had acquired property after making his will, interlined provisions therein and altered other provi- sions so as to cover such after-acquired property, it was held that such changes not being properly attested could have no testamentary effect, and yet not being done animus revocandi would not affect the will as it originally stood. Howard v. 316 SUKEOGATBS' COUKTS. Holloway, 7 Johns. 394. Similarly where it appeared that the signature of the testatrix had been erased, first by drawing diagonal lines over the name, and then nearly erasing such lines and the name itself, after which the testatrix carefully re- wrote her signature over the original place of signing. Surrogate Jenks held that there was no presumption of its having been done with the intention of revoking the will, and in the ab- sence of afiirmative proof to that efifect he admitted it to pro- bate. Matter of Wood, 2 Connolly, 144. § 11. Material alterations in will. — Where a will is offered for probate having material alterations and erasures, the Surro- gate must determine whether they were or were not made before execution. Matter of Wilcox, 131 N. Y. 610. When it clearly appears that the alteration was made before the will was executed probate will be granted. But, in doubtful cases, where material provisions have been erased or altered, and the Surro- gate cannot determine from the proof whether the alterations were made before or after execution, the whole instrument must be rejected, and probate refused. Matter of Barber, 92 Hun, 489, 497. The burden of proof is on the proponent to show they were made before execution. For the presumption in regard to alteration in a will is in this State, that it was made after execution. Matter of Carver, 3 Misc. 567, Davie, Surr. ; Wetmore v. Carryl, 5 Kedf. 544, 547, Eollins, Surr., citing Rerrick v. Malin, 22 Wend. 388 ; Smith v. McOowan, 3 Barb. 404 ; AcTcer v. Ledyard, 8 Barb. 514, and opinion of Lord Brougham in Cooper v. Bockett, 4 Moore's P. C. C. 419. See also, Yan Bur en v. Cockhurn, 14 Barb. 118 ; MoPherson v. Clark, 3 Bradf. 93 ; Estate of Prescott, 4 Eedf . 178. Those seeking to establish a will containing such apparent defects must overcome such presumption by proof direct or inferential. Dyer v. Erving, 2 Dem. 160, Rollins, Surr. ; Matter of Carver, supra. Once a will has been signed and published and at- tested, the testator may absolutely revoke it by destruction, or may amend or modify it by another writing executed with formalities such as attended its own execution. But he cannot otherwise, by one jot or tittle, vary its terms, either by additions, interlineations, obliterations, erasures or other changes upon its face, or by the after preparation of unattested papers, designed to supplement its provisions, or by the alteration of any such papers already in existence and engrafted by proper reference REVOCATION OF WILLS. 317 upon the will itself. Dyer v. Erving, supra, opinion of Rollins, p. lYO. The Court of Appeals (Grossman v. Grossman, 95 N. Y. 145, 152), intimated that there is no presumption where the interlineation is fair upon the face of the instrument and there are no circumstances to cast suspicion upon it that such interlineation though unexplained was fraudulently made after the execution of the instrument. But in that case the court had before it duplicate wills. The interlineation was in one of the two, and the words interlined were necessary to make the will the duplicate of the other. Moreover the interlineation was noted in the attestation clause. Judge Earl said (p. 163), " Taking all these circumstances there was sufficient to cast the burden upon the contestants to show that the interlineations were fraudulent and unauthorized." See Matter of Dxoyer, 29 Misc. 382, 390. In determining whether the alterations were made before or after execution, the Surrogate will interrogate the witnesses or persons present as to their personal knowledge ; and in the absence of any light from this source he should con- sider the handwriting, comparing it with that in the body of the instrument, the color of the ink, which he has authority to have chemically tested {Matter of Monroe, 5 JST. Y. Supp. 552), the manner of the interlineation, and, particularly, whether reference is made to it in the attestation clause [Grossman v. Grossman, supra), for in case there is such reference, the inter- lineation is sufficiently accounted for. 1 Greenleaf, § 564. See also Matter of Whitney, 90 Hun, 138-143. If the will is in testator's writing and was in his custody till his death, any interlineation or erasure will be presumed to have been made before execution. Matter of Potter, 33 IST. Y. St. Rep. 936. But pencil interlineations will not be deemed permanent parts of a will. Will of Tighe, N". Y. Law Journal, August 15, 1898. They show the deliberation of the testator, but are not sufficient as an embodiment of his determination. § 12. Effect of marriage as a revocation. — It was the rule of the common law that the marriage of a woman operates as an absolute revocation of her prior will. Brown v. Glark, 77 JST. Y. 369, 373, and cases cited. This rule of the common law was made a part of the law of this State by the Revised Statutes, which is the declaration of an absolute rule. It has been held that the fact that the testamentary capacity 318 surrogates' courts. conferred upon married women by the so-called married women's acts in this State, takes away the reason of the prior rule, does not abrogate this rule {Brown v. Clark, iv/pi'd), in spite of the maxim cessante ratione legis, cessat lex ipse. 3 Kedf. 445, reversed. The courts cannot dispose of a statutory rule because it may appear that the policy upon which it was established has ceased, but where a testatrix makes a wiU. before her marriage and after her marriage makes a codicil referring to such will, the due exe- cution and publication of such codicil is now, as it was prior to the Revised Statutes, a sufficient republication of the will to which it refers. Van Cortlandt v. Kipp, 1 Hill, 590 ; Brown v. Clarh, 77 N. Y. 369, 377, and cases cited. See also 1 Jarman on "Wills, p. 78. "A codicil duly attested communicates the efficacy of its attestation (even) to any unattested will or pre- vious codicil so as to render effectual any devise of the freehold estate which may be contained in such prior unattested instru- ment." The revocation accomplished by a marriage subsequent to the making of a will is absolute and operates eo instanti. Lathrap V. Dunlap, 63 N. Y. 610. See also Matter of Gall, 2 Connoly, 286, aff'd in 131 N. Y. 593, where testator married one to whom he had for a long time prior thereto sustained illicit relations ; the marriage found by the court was nonceremonial, but was adjudged to have taken place by mutual consent at a time sub- sequent to the making of the will. Held that while the fixing of the period when the parties passed by mutual consent from a state of illicit intercourse into that of marriage was incapable of being positively fixed, that negatively it certainly had not taken place at the time of the making of the will, which there- fore was revoked by the subsequent marriage and birth of issue. A widow is deemed an unmarried woman under this rule and a will made while she is a widow will be deemed revoked by her subsequent remarriage. Matter of Kaufman, 131 N. Y. 620, aff'd 61 Hun, 331. But where a married Avoman makes a will and subsequently to its execution her marriage is dissolved by judicial decree, she is not deemed to have executed it as an unmarried woman, and in such a case the Court of Appeals held that the subsequent remarriage of such a woman would not operate to revoke the will. Matter of MeLarney, 153 N. Y. 416, aff'g 90 Hun, 361, REVOCATION OF WILLS. 319 The word " unmarried " in the statute means a person not in a state of marriage. Id. §13. Illicit cohabitation, effect of. — By marriage, in this connection, is contemplated the solemn relation involving the mutual rights of the parties in a manner sufficient to entitle either to the aid of the courts. A ceremonial marriage between parties competent to contract it is of course sufficient to revoke a prior will in any case covered by the statute. Doubts may arise when the marriage claimed is of that vague character known as a common-law, or nonceremonial marriage for the reason that it is often no easy judicial task to determine just when the alleged marital relation commenced. "While the cohabitation of parties may continue for such a period and under such circumstances as to warrant a court in deciding that the parties are in law husband and wife, yet it may be impossible for the court to say just when illicit intercourse ended and the marital state commenced. The cohabitation, apparently decent and orderly, of two persons opposite in sex, raises a presump- tion of more or less strength that they have been duly married. Such cohabitation does not constitute marriage. It only tends to prove that the parties have entered into a marriage contract. But where the cohabitation is illicit in its origin, there is a pre- sumption that is so continues until a change in its character is shown by acts and circumstances strongly indicating that the connection has become matrimonial. Gall v. Gall, 114 N. Y. 109, 117, Vann, J., citing Gaujolle v. Ferrie, 23 N. Y. 90 ; CGara v. Eisenloher, 38 JST. Y. 296; Badger v. Badger, 88 ISr. Y. 546, 554 ; Ilynes v. McDermott, 95 N". Y. 451, 457. So when a testator living in illicit relations with a woman, made a will, and such relations continued to his death, and were subsequently by the Court of Appeals held to have grown into a matrimonial relation without fixing the time exactly, Surro- gate Abbott applying the opinion of the Court of Appeals in Gall V. Gall, just quoted, held in the absence of affirmative proof that the illicit intercourse had changed into matrimonial relations before the execution of a codicil a year after the mak- ing of the will, he must hold that the subsequent marriage, ad- judged by the Court of Appeals to have subsisted, and the birth of issue, must operate to revoke the will. In re GalVs Will, 9 N. Y. Supp. 466. § 14. Eevocation by birth of child. — The language of the 320 SXJKROGATES' COURTS. statute is express in this regard, and the rule must be borne in mind that when the statute defines such a revocation, all other cases are impliedly excluded, thus the statute making no provi- sion for the revocation of a will by the discovery of the exist- ence of a child, living at the time of the making of the will, a will made in ignorance of such existence, is not revoked. {Ordish V. McDeriaott, 2 Redf. 460.) So the will of a mar- ried woman is not revoked by the subsequent birth of children although they are not provided for in the will. Cotheal v. Cotheal, 40 N. Y. 405. So it seems, the will of an unmarried woman will not be deemed revoked by the birth of an illegiti- mate child. Matter of Bunce, 6 Dem. 278 ; Matter of Huiell, 6 Dem. 352. But even where a child is born after a will has been executed in which no provision has been made for it, and the whole of testator's estate is thereby disposed of, the fact that the child is under the statute entitled to the same share in the estate which would have been his or hers if the father had died intestate does not justify refusing probate to the will. That is proper only where the marriage, of which the child unprovided for is the issue, occurred after the testamentary act. Matter of Gall, Rollins, Surr., 5 Dem. 374. § 15. Irrevocable wills. — A will being ambulatory in its na- ture is, therefore, revocable at any time before the testator's death, the act of revocation being conducted pursuant to the requirements already pointed out; so far as the Surro- gate's court is concerned, there are, therefore, no irrevocable wills. The agreement of the testator for a good and valid considera- tion to make an irrevocable will in favor of the person from whom such consideration is received, or of some person named by him, is an agreement unenforceable in the Surrogates' Courts, so that though the testator has made such a will and although it expressly states that it is an irrevocable will, it may be re- voked by his later will provided the requirements above set forth are complied with ; and the later will, if propounded be- fore the Surrogate, and duly proved, must be admitted to pro- bate as the last will and testament of the decedent. Matter of Gloucester, 11 N. Y. Supp. 899. The remedy of the beneficiary is not by excluding the later will from probate, for the Surro- gate has no jurisdiction to deal with contracts, but by a suit in equity to enforce the agreement evidenced by the will pur- REVOCATION OF WILLS. 321 porting to be irrevocable. Mutual Life Ins. Co. v. Holladay, 13 Abb. JSr. C. 16. Thus where an uiiLenuptial agreement was made between decedent and his future wife to execute mutual wills after mar- riage and such wills were accordingly executed, nevertheless, it was held that such wills did not thereby become as wills irrev- ocable, nor operate to prevent the decedent from thereafter executing a testamentary paper varying from and repugnant to it. Matter of Keep's Will, 2 N. Y. Supp. 750, citing Ex parte Bay, 1 Bradf. 476; Schumacher v. Schmidt, 4 Amer. Kep. 138 (Ala.) ; Hopper v. Beed, 32 Daily Reg. October 26, 1887. See Edson v. Parsons, 155 N. Y. 555. So where A made an oral antenuptial agreement with B to make a will in her favor after marriage, it was held that mar- riage was a part of the agreement, and sole consideration there- for, but not a sufficient part performance to take the case out of the Statute of Frauds. Hunt v. Hunt, 111 N. Y. 396, aflf'g 55 App. Div. 430. In this case B proved actual execution of a will by A, but it appeared that such will was destroyed, and the oral testimony in support of its contents did not show that it contained any recognition of the antenuptial agreement. Held insufficient to bar the statute, citing Cooley v. Lobdell, 153 N. Y. 596, 600 ; Mentz v. Newwitter, 122 IS". Y. 491. An agreement to make a will is perfectly valid, and after the death of either of the parties becomes irrevocable {Ex parte Day, 1 Bradf. 476, and cases cited) ; but as a will, an irrevocable instrument is unknown to the testamentary law of either this country or England. See Hobson v. BlucTcbum, 1 Addams, 274, opinion of Sir John JSTicholi. Once the notion of irrevocability is imported into a document, purporting to be a will, the circumstance changes its essence as a will and converts it into a contract ; over such instruments Surrogates' Courts have no jurisdiction. Everdell v. Hill, ^^ App. Div. 151, 159. The distinction between an irrevocable will and a will that becomes irrevocable as being one of two mutual wills, the tes- tator of the other having died, is clear. Therefore between the mutual will, as a will, and its irrevocability as a will, and the will as an agreement, and its irrevocability as an agreement, there is an equally clear distinction (see Ex parte Day, supra) but while a will is held to be always revocable and the last 21 322 SURKOGATBS' COURTS. will regardless of the nature and provisions and declarations in the first, must always be the testator's last will and testament, yet a man may so bind his assets by agreement that his estate shall be a trustee for the purpose of his agreement, and so a compact between the parties to a so-called irrevocable will will be operative in equity to the extent of making the devisees of the will trustees for performing the decedent's part of the con- tract. See Ex parte Day, supra, extracts from English deci- sions. This contract or agreement is said to attach to the es- tate of the decedent as an equitable lien or trust enforceable in a court of equity. See In re Keep's Will, 2 N. Y. Supp. 750, citing Ex parte Day, supra ; Sclnvmacher v. Schmidt, supra ; Parsell v. Stryker, 41 N. Y. 480 ; Giles v. DeTalleyrand, 1 Dem. 97. See also Be Gloucester'' s Estate, 11 N. Y. Supp. 899, opinion of Surrogate Abbott, who says, "Under the authori- ties, if a first will was made for a valuable consideration, its provisions may be enforceable against testator's estate as a binding contract in a court of equity. So far as it can be deemed to be a last will and testament, it has been revoked in express terms by the testator in his last will, and therefore has no longer an}^ legal existence as a last will and testament. This court has no jurisdiction to deal with contracts ; let de- cree enter admitting the last will to probate." § 16. Same. — There can be no doubt but that a person may make a valid agreement binding himself legally to make a par- ticular disposition of his property by last will and testament, and if a testator agrees to devise property to another and re- ceives a good and valuable consideration for such agreement, such agreement, a court of equity will hold, must be specifically performed. Stevens v. Reynolds, 6 N. Y. 458 ; Parsell v. Stry- ker, 41 N. Y. 480, 487, and cases cited. This agreement can be enforced by compelling a conveyance from heirs of the promisor, or from purchasers with notice from him in his lifetime. See also Giles v. De Talleyrand, supra, where the Surrogate held that he had no authorit}'^ to construe or pass upon such an agreement as affected the will propounded before him. The settlement of the executor's ac- counts and distribution of the estate was deferred until the question of the validity and effect of the instrument could be passed upon by a competent tribunal. See also Mut. Life Ins. Go. v. Holladay, 13 Abb. N. 0. 16. But where mutual wills KBVOCATION OP WILLS. 323 are made not in pursuance of agreement between the testators, either may revoke his will without giving notice of his inten- tions to the other. Edson v. Parsons, 85 Hun, 263, citing Ex parte Day, 1 Bradf. 476. And if it be claimed subsequently that the wills were made pursuant to a contract, that fact must be established by the most clear and satisfactory evidence. So, if it is recited in the wills that they were so made, or if it in any way appears on their face that they were executed pursuant to a contract, it is quite sufficient. The will made in violation of the agreement must be pro- bated by the Surrogate, and such probate is effective to trans- fer the legal title. Kine v. Farrell, Tl App. Div. 219. In a proper case, however, such legal title can be impressed with a trust in favor of a party having prior equities. In the case cited thei^e was an agreement in writing between plaintiff and decedent, reciting a good consideration, free from ambiguity, and neither inequitable nor against public policy. No superior equities had intervened. The court decreed "that the legal title is impressed with a resulting trust in favor of the plaintiff for the performance of the testator's agreement," and that such agreement would be specifically enforced by requiring a con- veyance of the legal title to the plaintiff in execution of such trust, and by enjoining the beneficiaries under the will from questioning such title, [lid., citing Parsell v. Stryher, 41 N. Y. 480 ; Shakespeare v. Markham, 10 Hun, 311, aff'd 72 IST. Y. 400 ; Godine v. Kidd, 64 Hun, 585 ; Brantingham v. Huff, 43 App. Div. 414 ; Gates v. Gates, 34 App. Div. 608 ; Winne v. Winne, 166 K Y. 263 ; Edson v. Parsons, 155 N. Y. 555 ; EUerson v. Westcott, 148 IST. Y. 149. The party to the agreement with the decedent need not object to the probate of the will made in fraud of the agree- ment. The Surrogate would not deny probate on his objec- tion, and his failure to so object works no estoppel. Ihid., at p. 220, citing Matter of Gloucester'' s Estate, 11 N. Y. Supp. 899 ; Giles's Estate, 11 Abb. N. C. 57 ; Matter of Keep, 17 N. Y. St. Rep. 812. CHAPTER III. PEOCEDUEE OF PKOBATE PEOCEEDINGS. § 1. The petition, — The petition is the first step in proceed- ings to prove a will. The distinction between proving a will in common form and in solemn form is practically no longer observed under the Code. Section 2614 provides for the pres- entation of the petition and is as follows : Who may propound will. A person designated in a will as executor, devisee, or leg- atee, or any person interested in the estate, or a creditor of the decedent, or any party to an action brought or about to be brought, and interested in the subject thereof, in which action the decedent, if living, would be a proper party, may present to the surrogate's court having jurisdiction, a written petition, duly verified, describing the will, setting forth the facts, upon which the jurisdiction of the court to grant pro- bate thereof depends, and praying that the will may be proved, and that the persons, specified in the next section, may be cited to attend the probate thereof. Upon the pres- entation of such a petition, the surrogate must issue a cita- tion accordingly. § 3614, Code Civil Proc. The petition accordingly is to be made to cover all necessary jurisdictional facts, and to include all persons entitled to be cited, so as to leave out none upon whom the decree admitting the will to probate ought to be binding under sections 2626 and 2627, post. The petition should substantially set forth the following facts : Decedent's name; Date of his death ; Place of his death ; That he left a will ; Date of the will ; Same as to codicils, if any ; Execution of will, and names of witnesses ; (324) PEOCEDTJKE OF PBOBATE PROCEEDINGS. 325 Residence of decedent at the time of his death ; If a non-resident, that he left personal property within the State ; or that he left such property which since his death has come within the State and remains unad ministered ; or that he died seized of real property situated in the county, and to which the will offered relates; or which is subject to disposition to pay decedent's debts. And it is proper to add that no other application for probate or administration has been made to any other Surrogate in the State, whether the will relates to real or personal property or both ; Approximate value of personal property ; Names of necessary parties, which will be, in case the will relates to real property, the husband or wife and all the heirs of testator or, in case it relates to personalty the husband, or wife and all the next of kin. If it relate to both all must be named. It is customary to add the residence of one so named, or the statement that it is unknown and cannot be ascertained ; Unknown persons must be approximately designated or in- cluded in a class ; Whether all are of full age, and if not which are infants and whether over or under fourteen years of age; The character in which petitioner appears should be made clear, whether as executor named, or as party interested, and facts showing prima facie that he is entitled to propound the will ; Prayer for probate. Surrogate's Court, County of New York. P e t i t i n for I^^ t^e matter of proving the ... .,, last Will and Testament of probate of a mil. Deceased, as a Will of Real and Per- sonal property. To the Surrogate's Court of the County of New York : The petition of residing at No. in the City of New York, respectfully showeth, that your Petitioner Execut named in the last Will and Testament of 326 SUEROGATES COURTS. late of the County of New York, deceased ; That said last Will and Testament, herewith presented, relates to both real and personal prop- erty, and bears date the day of 18 and is signed at the end thereof by the said testat and by as subscribing wit- nesses. That petitioner does not know of any codicil to said last WiU and Testament, nor is there any to the best of h information and belief. That the said deceased was, at the time of h death, a resident of the County of New York, and departed this Hfe in said County, on the day of 189 Your Petitioner further states that the hus- band, widow, all the heirs, and all the next of kin of said deceased testator, together with their residences, are as foUows, to wit: Your Petitioner a of deceased who resides at a of deceased a of deceased a of deceased who resides at. That aU the above named are of fuU age and of sound mind, except, a of deceased who infant under the age of fourteen years, and reside with and a of deceased who resides at who resides at who infant over the age of fourteen years. N te Erase Note. That said decedent left h surviving unnecessary mat- iio husband, widow, child or children, adopted ter. child or children ; no issue of any deceased chUd or children ; no issue of any deceased adopted chUd PEOCEDUEE OP PEOBATE PROCEEDINGS. 327 or children; no father or mother; no deceased child's husband or wife ; no brother or sister of the half or the whole blood ; no issue of any de- ceased brother or sister; no deceased brother's wife; no deceased sister's husband; no uncle; no aunt, and no cousin, except as above stated. That your Petitioner prays for an order direct- ing the service of the citation herein without the State or by publication, pursuant to section 2622 of the Code of Civil Procedure, upon such of the above-named persons as are hereinbefore stated to be non-residents of the State of New York. That no petition for the probate of said Will, or for Letters of Administration on said estate, has been heretofore filed in this or any other Surrogate's Court of this State. Your Petitioner further prays that a citation issue to the above-named persons to attend the probate thereof, and that the said last WUl and Testament may be proved as a wiQ of real and personal property and that Letters Testamentary may be issued thereon to the Execut who may qualify there- under. Dated, New York, 189 Petitioner. State of New York, ,^ } County of New York, the Petitioner named in the foregoing Petition, being duly sworn, de- poses and says that h has read the foregoing Petition subscribed by h and knows the contents thereof ; and that the same is true of h own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters h believes it to be true. Sworn to this da^ \ of A. D. 189 I Petitioner. N. Y. Co. B28 surrogates' courts. Endorsed Memorandum for Probate Clerk IN New York County. Proponents will please fill the following blanks before filing : What is the value of the personal property ? $ What is the value of the real property? $ Are any of the subscribing Witnesses dead ? If so, give their names, State Names and Residences of subscribing Wit- nesses you propose to call on the return day of citation, State names of Executors who will qualify, with their residences, giving street and number, Where was the Will executed? Will a Commission be necessary ? Where did the deceased reside at the time of death ? § 2. Same. — The petition must be in writing, and verified (C! C. P. § 2614) as pleadings are verified. C. 0. P. § 2534. The decision in Wright v. Fleming, 19 Hun, 370, in 1879, where the General Term of the Second Department held it not to be strictly necessary " to have a petition in writing to set in motion proceedings to prove a wiU," must not be con- sidered as controlling now in face of the express words of the Code, § 2614, and the universally accepted practice. Sec- tion 2534 of the Code provides that the provisions of sections 523-526, q. v., (sec. 523. When pleading must be verified ; sec. 524. Allegations on knowledge, and on information and be- lief ; sec. 525. Verification, how and by whom made ; sec. 526. Form of verification), apply to the verification of pleadings in Surrogates' Courts and to the petition or other papers so veri- fied, where they can be applied in substance, without regard to the form of the proceedings. § 3. To what Surrogate petition must be presented. — It PROCEDURE OF PROBATE PROCEEDINGS. 329 has been noted under the head of jurisdiction that " the Sur- rogate's Court obtains jurisdiction in every case, by the exist- ence of the jurisdictional facts prescribed by statute, and by the citation or appearance of the necessary parties " (C. C. P. § 24T4), but exclusive jurisdiction is conferred on certain Sur- rogates of the probate of wills under certain circumstances. See ante, p. 44 et seq. Section 2476 of the Code provides : The surrogate's court of each county has jurisdiction, ex- clusive of every other surrogate's court, to take the proof of a -will, and to grant letters testamentary thereupon, or to grant letters of administration, as the case requires, in either of the following cases : 1. Where the decedent was, at the time of his death, a res- ident of that county, whether his death happened there or elsewhere. 2. Where the decedent, not being a resident of the state died within that county, leaving personal property within the state, or leaving personal property which has, since his death, come into the state, and remains unadministered. 3. AVhere the decedent, not being a resident of the state, died without the state, leaving personal property within that county, and no other ; or leaving personal property which has, since his death, come into that county, and no other, and re- mains unadministered. 4. Where the decedent was not, at the time of his death, a resident of the state, and a petition for probate of his will, or for a grant of letters of administration, under subdivision second or third of this section, has not been filed in any sur- rogate's court ; but real property of the decedent, to which the will relates, or which is subject to disposition under title fifth of this chapter, is situated within that county, and no other. § 3476, Code Civil Proc. Consequently in any case covered by the four subdivisions of this section, the petition must be presented to the Surrogate of the county having this exclusive jurisdiction. Subdivisions 3 and 4, however, suggest the possibility of a case where personal property comes or real property is found to be situated in another county or counties. In such case, while the Surrogates of such counties have concurrent jurisdic- tion, exclusive of all others than themselves, the one first as- 330 surrogates' courts. suining jurisdiction of the probate proceedings has a jurisdiction exclusive of every other Surrogate. This is by virtue of sec- tion 2477. Where personal property of the decedent is within, or comes into, two or more counties, under the circumstances specified in subdivision third of the last section ; or real prop- erty of the decedent is situated in two or more counties, un- der the circumstances specified in subdivision fourth of the last section ; the surrogates' courts of those counties have concurrent jurisdiction, exclusive of every other surrogate's court, to take the proof of the will and grant letters testa- mentary thereupon, or to grant letters of administration, as the case requires. But where a petition for probate of a will, or for letters of administration, has been duly filed in either of tlie courts so possessing concurrent jurisdiction, the ju- risdiction of that court excludes that of the other. § 3477, Code Civil Proc. § 4. Jurisdiction of Surrogates over wills of residents. — The primary distinction indicated by section 2476 is between resident and non-resident decedents. Jurisdiction to take proof of the will of a decedent, who was a resident of the county at the time of his death is wholly independent of assets. Matter of Taylor, 13 N. Y. St. Eep. 176. But it may be necessary for the Surrogate to determine the fact of residence, which he has power and which it is in fact his duty, to do. Bolton v. Schricver, 135 N. Y. 65. "Where decedent was a lunatic, and her committee removed her from Putnam County, her former place of residence, to his own residence in Westchester County, where she lived till she died. Surrogate Coffin held that her res- idence at death was in the latter county. Hill v. Horton, 4 Dem. 88, 92. While the domicile of the father is that of the child ( Von Hoffman v. Ward, 4 Redf. 244, 259 ; Kennedy v. RyaV, 69 N. Y. 379, 386), it is not changed by a mere separa- tion of the father and mother, there being no legal dissolution of the relation of husband and wife, yet the domicile of the hus- band is not necessarily that of the wife, if they have separated. Matter of Florence, 54 Hun, 328. The original domicile will be presumed to continue until anew one is acquired ( Yon Hoff- man V. Ward, supra; Depuy v. Wurtz, 53 N. Y. 556), and a new one can be acquired only by actual residence coupled with PEOCEDUEE OF PEOBATE PEOCEEDINGS. 331 the intent there to abide. Graham v. PuUic Administrator, 4 Bradf. 127 ; Matter of Thom.pson, 1 "Wend. 43. Their inten- tion to change is not sufficient. Yon Hoffmann. Ward, supra; Graham v. Public Administrator, supra ; Matter of Clarke, 40 N. Y. St. Eep. 12. Where there is doubt as to the dece- dent's residence the Avill may be resorted to, for the words of description may be significant in disputed cases as fixing whether at the time of its execution his domicile of origin had changed. Matter of Stover, 4 Redf. 82, 87. "Where the petition contains distinct allegations as to testa- tor's residence, and the allegations are practically substantiated by proof, the decree admitting the will to probate is conclusive, and cannot be collaterally attacked. Bumstead v. Read, 31 Barb. 661. So if a petition is filed containing a distinct allegation of resi- dence in that county, the Surrogate of such county acquires exclusive jurisdiction under section 2475 to try the question of residence. And if a petition is filed in another county alleging residence there, the Surrogate of that county acquires no juris- diction unless the Surrogate first acquiring jurisdiction deter- mines the residence of decedent not to have been in his own county. Matter of Buckley, 41 Hun, 106. § 5. County residence not state residence the test of jur- isdiction. — -Section 2476 expressly hinges the Surrogate's jurisdiction in case of residents upon the residence of the decedent at the time of his death within the county of the Surrogate. Consequently a mere allegation in the petition that the tes- tator at the time of his death was a resident of the State of New York is not sufficient to give jurisdiction. Oviedo v. Duffie, 5 Eedf. 137. Not even where all the parties to the proceeding consent. Matter of Zerega, 58 Hun, 505. "Where testator's home was in "Westchester County where he voted and paid taxes, but spent the winter months in New York City at his daughter's house, paying board to her, it was held by the Gen- eral Term, reversing the Surrogate of New York, that he was a resident of "Westchester County, and that the New York Sur- rogate had no jurisdiction. Matter of Zerega, supra. § 6. Conflict of jurisdiction. — Section 2477 (above quoted) declares that where a petition for probate or for letters of admin- istration is once filed with either of two or more Surrogates' 332 StTREOGATES' COUETS. Courts having concurrent jurisdiction, the jurisdiction of the one with whom such petition is filed, becomes exclusive. It seems, however, that the jurisdiction of the other Surro- gate in such a case is merely held in abeyance and revives if the jurisdiction of the one so acquiring exclusive control terminates for any cause. So, when two petitions were filed, one with the Surrogate of Wayne County for letters of administration, and the other, a day later with the Surrogate of Monroe County for probate of the will, it is manifest that under section 2477 the jurisdiction of the Surrogate of "Wayne County was exclusive. But when he denied the application before him, it was held the other Surrogate had thereupon jurisdiction to proceed with the probate of the will. Matter of Gould, 9 N. Y. Supp. 603, aff'd 131 ]Sr. Y. 630. § 7. Jurisdiction of wills of non-residents. — The jurisdiction given over wills of non-residents by section 2i76, subdivisions 2, 3 and 4, and conditioned (1) either by the non-resident's death within the Surrogate's County leaving property in the State or which comes into the State subsequently ; or (2) by the non- resident's leaving personal or real property in that county and in no other in case he died out of the State, is preconditioned by the provisions of section 2611 of the Code, and of chapter 731 of the Laws of 1894, which prescribe what wills of non-residents can be proved in this State. Section 2611 is as follows : A will of real or personal property, executed as prescribed by the laws of the state, or a will of personal property e.xe- euted without the state, and within the United States, the dominion of Canada, or the kingdom of Great Britian and Ireland, as prescribed by the laws of the state or country where it is or was executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residence, may be proved as pre- scribed in this article. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision coQtained therein, is not affected by a change of the testator's residence made since the execution of the will. This section applies only to a will executed by a person dying after April eleven, eighteen hun- dred and seventy-six, and it does not invalidate a will exe- cuted before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred PROCEDtTEB OF PROBATE PROCEEDINGS. 333 and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is revoked or altered by a will which those sections rendered valid, or capable of being proved as prescribed in this article. § 3611, Code Civil Proc. Under this section it has been held that a New York Surro- gate has jurisdiction and may proceed with the probate of a non-resident's will of personal property executed according to the laws of such testator's residence, without awaiting actioa by the corresponding tribunals of the other State or country. Booth V. Timoney, 8 Dem. 416 ; Matter of Delajjlxiine, 45 Hun, 225. So, a holographic will of one dying in France with no witnesses, valid under the Civil Code of France, section 970, was admitted to probate in TSTew York County as a will of personal property. Matter of Cruger, 36 Misc. 477. But this section gives no jurisdiction to a Surrogate over the probate of wills of real property unless executed according to the New York laws. Matter of Oaines, 84 Hun, 520. The statutory provisions are as follows : Admission of will of non-residents to prohate, etc. The last will and testament of any person being a citizen of the United States, or, if female, whose father or husband pre- viously shall have declared his intention to become such citizen, who shall have died, or hereafter shall die, while domiciled or resident within the United Kingdom of Great Britain and Ire- land, or any of its dependencies, which shall affect property within this State and which shall have been duly proven within such foreign jurisdiction, and there admitted to probate, shall be admitted to probate in any county of this State wherein shall be any property affected thereby, upon filing in the office of the Surrogate of such county, and there recording, a copy of such last will and testament, certified under the hand and seal of a consul-general of the United States resident within such foreign jurisdiction, together with the proofs of the said last will and testament, made and accepted within such foreign jurisdiction, certified in like manner; and letters testamentary of such last will and testament shall be issued to the persons named therein to be the executors and trustees, or either, thereof, or to those of them who, prior to the issuance of such letters, by formal renunciation, duly acknowledged or proven in the manner pre- scribed by law, shall not have renounced the trust therein de- 334 SUEEOGATES' COtTETS. volved upon them ; provided, that before any such will shall be admitted to probate ia any county in this State, the same pro- ceedings shall be had in the Surrogate's Court of the proper county as are required by law upon the proof of the last will and testament of a resident of this State who shall have died therein ; except that there need be cited upon such probate pro- ceedings only the beneficiaries named in such will. L. 1894, chap. 731. § 8. Same subject. — The jurisdiction over wills of non- residents depends therefore under section 2476 upon property being in or being brought into the county of the Surrogate. Subdivision 4 relating to real property is very explicit. But the two prior subdivisions relate to personal property. Many of the decisions use the word " assets," but erroneously. The word " assets" is usually understood to relate only to personal property applicable to the payment of debts. White v. Nelson, 2 Dera. 265. But the words used in section 2476 cover every article of personalty. Consequently, jurisdiction, in a proper case, may be predicated on the existence of a Japanese folding chair ( Wldte v. N'elsoii), or a family Bible, or a pair of earrings, or an insurance policy {Johnson v. Smith, 25 Hun, 171), or a promissory note actually in the county {Matter of Hopper, 5 Dem. 242 ; Code Civ. Proc. § 2478 ; Beers v. Shannon, 73 N". Y. 292). The location of the property in the Surrogate's county is what gives him jurisdiction {Taylor v. Pvhlic Administrator, 6 Dem. 158), and the fact that it was improperly brought in the county since decedent's death does not divest such jurisdiction. Matter of Hughes, 95 N. Y. 55 ; Parsons v. Lyman, 20 N". Y. 103. But the mere transmission by a foreign executor of funds into the State in pursuance of a decree for distribution by the court which appointed him does not warrant a Surrogate in basing on such funds a claim of jurisdiction here. Such funds cannot be subjected to a second administration. Sedgwick v. Ashburner, 1 Bradf. 105. To acquire jurisdiction under sub- division 4, i. e., on the basis of " real property of the decedent to which the will relates in the Surrogate's county," it is suf- ficient that the will purports to devise such real property. For purposes of jurisdiction the Surrogate need not try the issues of the testator's title as a preliminary to the proof of the will. Yreeland v. McClelland, 1 Bradf. 393, 415. If the devise is general, and has no sufficient description on its face to show PROCEDURE OF PROBATE PROCEEDINGS. 335 that the property devised is within the particular county, it would be competent for the Surrogate to hear testimony and satisfy himself on that point. Ihid, Finally it is important to note that the property on which the Surrogate bases his jurisdiction must be unadministered. So where an executrix under a Ehode Island will qualified in that State, and coming to New York City reduced to her possession as executrix, all the assets of her testator's estate that were in that county, and took them into actual manual custody, collecting in all moneys there held on deposit for his account, it was held there was no property within the county unadministered to sustain jurisdic tion of a proceeding begun by a petition filed after the execu- trix had reduced the property to her possession. Townsend v. Pell, 3 Dem. 367, citing Evans v. Schoonmaker, 2 Dem. 249, aff'd 31Hun, 63S. For the purpose of conferring jurisdiction upon a surro- gate's court, a debt, owing to a decedent by a resident of the state, is regaided as personal property, situated within the county where the debtor, or either of two or more joint debtors, resides ; and a debt, owing to him by a domestic corpora- tion, is regarded as personal property, situated within tiie county where the principal office of the corporation is situated. But the foregoing provision does not apply to a debt evidenced by a bond, promissory note, or other instrument for the pay- ment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt, whether the debtor is a resi- dent or a non-resident of the state, or a foreign or a domestic government, state, county, public officer, association, or cor- poration, is, for the purpose of so conferring jurisdiction, regarded as personal property, at the place where the bond, note, or other instrument is, either within or without the state. § 3478, Code Civil Proc. § 9. Waiver of citation. — Section 2528 of the Code was amended in 1896 (by chapter 570, Laws of 1896, which took effect September 1, 1896), so as to provide explicitly for the waiver of issuance and service of citation. The amendment pro- vides : " The issuance and service of a citation may be waived by a party in any proceeding by an instrument in writing acknowl- edged and approved as a deed entitled to be recorded; or by personal appearance, or by his attorney with written author- 336 STJEEOGATES' COTTETS. ization executed and acknowledged as a deed, and filed in the oflBce of a Surrogate." This amendment amounts practically only to a declaration of a rule already existing and practised in the Surrogates' Courts. It must be borne in mind that the section refers to appearance of parties and the amendment is preceded by pro- visions for the prosecuting or defending of special proceedings in Surrogates' Courts by a party of full age, unless he has been judicially declared to be incompetent to manage his af- fairs ; and while the language of the amendment is very broad, " may be waived by a party in any proceeding," it is believed that the intention of the legislature was that such waiver should be limited to persons of full age, and does not extend to give infants or incompetent persons the power to execute such waivers. The decision of the Surrogate of Otsego County {Matter of Gregory, 13 Misc. 363), that waiver of service cannot be ac- cepted in Ueu of ^'■issuance and service"" of citation is not in- consistent with the practice. Where there are infants, issu- ance of service cannot be dispensed with nor the time shortened. But where all parties are of age and consent, the issuance and service of citation is in ordinary practice deemed unnecessary if formal waivers properly acknowl- edged, covering both issuance and service of the citation, are filed. It is only necessary to add here that in addition to dispens- ing with the issuance and service of citation by waivers, where all the parties are of full age and competent, it can also be dispensed with when the petition sets forth and the Surrogate is satisfied that the decedent left no other heir, next of kin, or person interested except the petitioner only. Bailey v. Stewart, 2 Eedf. 212, 222. The object of the citation is to give notice to all parties interested. If the Surrogate is satisfied there are none besides the petitioner, he may dispense with what would be a useless form. This seems to have been the procedure upon the probate of the will of Alexander T. Stewart. See Bailey v. Stewart, 2 Eedf. 212, 221. The widow filed a petition stating that the " widow, only heirs and next of kin of said deceased " was the petitioner, and that the de- ceased left him surviving neither father, mother, brother, nor sister, nor descendants of any or either of them, nor any de- PEOCEDUKE OF PKOBATE PROCEEDINGS. 337 scendants of his, nor any relation nor next of kin of said de- ceased. This was held to be " satisfactory evidence " to warrant the Surrogate in omitting to issue citations to " persons thus clearly proved not to exist." Same affirmed sub nomine, Bailey v. Hil- ton, 14 Hun, 3. It has occasionally been claimed by practitioners that it is unnecessary to cite the next of kin of a decedent leaving per- sonal estate alleged not to exceed $2,000 in value, where the widow or husband of the decedent is the petitioner for probate in case there are no legacies bequeathed by the will, on the ground that in such cases the widow or husband would take the whole estate under the statute of distributions. 8 R. S. 2565, 2567, part. II, chap. YI, art. Ill, title 3, sec. 75, subd. 3. But it would seem to be safer that citations should issue nevertheless in order that those cited may have opportunity to prove if possible that there is more than $2,000 in the estate, in which case they might be " persons interested." Suoh is the custom in the New York Surrogate's Court. § 10. Persons entitled to citation. — Section 2615 of the Code, which provides what persons are to be cited upon a peti- tion presented for the probate of a will, has been frequently amended (in 1892, 1893 and 1891), and in examining into the regularity of probate proceedings with a view to ascertaining whether or not they are conclusive against a given person, the practitioner will do well to refer to the language of the statute as it may have been in force at the time of the probate. The language now is as follows : The following persons must be cited upon a petition pre- sented as prescribed in the last section : 1. If the will relates exclusively to real property, the hus- band or wife, if any, and all the heirs of the testator. 2. If the will relates exclusively to personal property, the husband or wife, if any, and all the next of kin of the tes- tator. 3. If the will relates to both real and personal property the husband or wife, if any, and all the heirs, and all the next of kin of the testator. § 2615, Code Civil Proc. The word all is inclusive — alien heirs must be cited as well as those resident here. Kilfoy v. Powers^ 3 Dem. 198. So, 22 338 surrogates' courts. in Mutter of Healy, 27 Misc. 354, it was held to include issue of deceased uncles and aunts, who by virtue of subd. 12 of section 2732 {see post, p. 1503) were entitled by representation. But legatees, are not required to be cited. Walsh v. Ryan, 1 Bradf. 433 ; Dyer v. Erving, 2 Dem. 160. The provisions, for a time operative, whereby all persons in being who would talie an interest in any disposition of the real or of the personal property, or of both, under the provisions of the will were also required to be cited, are now wisely left out. This simplification of the statute is believed to be a step in the right direction. There is no provision made for citation of legatees or devisees who are not heirs or next of kin and they may properly be cited if it is desired to make the probate con- clusive upon them, and as already elsewhere laid down, if not cited, they may petition to be brought in as parties in the pro- bate. Welsh V. Ryan, 1 Bradf. 433. It is to be noted that this decree was in 1851 and before the amendment requiring lega- tees or devisees to be cited, the statute at that time provided only for the citation of the widow, heirs and next of kin in probate cases ; this was undoubtedly on the principle that these persons being the persons who would succeed to the estate in case of intestacy are all the persons interested against admit- ting the will, and therefore entitled at the outset to be cited, and this case expressly held that such a person in interest was not bound to rely upon the proper representation of his inter- ests by the executor, but might intervene to protect his inter- ests and oppose the probate of the will or a codicil thereof. The learned Surrogate cited the following cases: Lewis v. Bulkley, 1 Cas. Temp. sees. 513 and 190, notes ; Bittleston v. Clark, 2 id. 250 ; Hayle v. Hasted, 1 Curt. 236 ; Mansfield v. Shaio, 3 Phill. 22 ; Urquhart v. Fricker, 3 Add. 58. See also, Lawrence v. Parsons , 27 How. Pr. 26 ; Foster v. Foster,, 7 Paige, 48. Where a party becomes interested, while a probate proceed- ing is pending, as by the death of the person to whose interest he succeeds, the Surrogate has power to bring such person in as a party. Russell v. Hartt, 87 N. Y. 18. The exclusion of " creditors " from " persons interested," by subdivision 11 of sec- tion 2514, of the Code of Civil Procedure, does not apply to a judgment creditor of a devisee named in a will. Thus vrhere the interest of such a devisee would be defeated if an alleged codi- PKOCEDUEE OF PROBATE PROCEEDINGS. 339 oil were proved, such a creditor has been held to be entitled to appear and oppose the probate of the codicil, as a " party inter- ested." Rafferty v. Soott, 4 App. Div. 429. If the person so becoming interested be a minor, the Surrogate will appoint a special guardian for him upon bringing him in. Russell v. Hartt, supra. But if a guardian be not appointed at the proper time, the defect cannot be cured by an order nunc pro tuno. Matter of Bowne, 6 Dem. 51. For the defect is one which ipso facto gives the infant, if the decree is against him, the right to move to vacate it on attaining majority, and this right the Sur- rogate's Court cannot defeat. And if a person entitled to be cited has been inadvertently omitted as a party, it has been held that the Surrogate may bring him in by a supplemental citation. Matter of Crumb, 6 Dem. 478 ; Code Civ. Proo. § 2481 ; Matter of Bradley, 70 Hun, 104, 110. In the case first cited the Surrogate inserted in the citation a direction to attend and show cause why the evidence taken and the proceedings theretofore had to prove the will should not stand, and why the decree admitting said will to probate and adjudging the same to be a valid will, to pass real and per- sonal estate should not be sustained, and why he should not be bound thereby with the same force and effect as if he had been previously cited to attend the original probate thereof. The practice seems to be correct for the reason that the power to take the proof of wills being given generally, the mode of its exercise in a case not provided for by the statute, must be regulated by the court in the exercise of a sound discretion according to the peculiar circumstances of each particular case. Camphell v. Logan, 2 Bradf. 90. ' § 11. Section 2615 is mandatory and explicit. — The re- quirements of section 2615 must be specifically complied with. The omission of any who are by this section made " necessary parties," is a serious defect. The surviving husband or wife, as the case may be, must always be cited. Lusk v. Alburtis, 1 Bradf. 456. But the husband of one of the heirs or next of kin, unless himself one of the heirs or next of kin, is not entitled to citation. Keeney v. Whitemarsh, 16 Barb. 141 ; Beeher v. Lynch, 1 Bradf. 458. "Where, however, a wife has been divorced from the testator, a different rule prevails. If divorced for her own wrong she has no rights in his estate whether real or per- 340 SUKKOGATES' COURTS. sonal. If divorced, though blameless, she has no rights in his personal estate. Consequently a divorced wife need never be cited upon the probate of a will of personal property, and a wife divoi'ced for her own wrong need not be cited upon the probate of a will of personal property or of real and personal property. Matter of Estate of Ensign, 103 N. Y. 284, 290. The contents of citation must be as required by section 2616, which is as follows : The citation must set forth the name of the decedent, and of the person by whom the will is propounded ; and it must state whether the will relates, or purports to relate, exclu- sively to real property, or personal property, or to both. Where the will propounded was nuncupative, that fact must be stated in the citation. "Where the surrogate is unable to ascertain to his satisfaction, whether the decedent left, sur- viving him, any person, who would be entitled to the prop- erty affected by the will, if the decedent had died intestate, the citation must be directed, where the will relates to real • property, to the attorney-general; where it relates to per- sonal property, to the public administrator, who would have been entitled to administration, if the decedent had died intestate. § 2616, Code Civil Proc. The theory on which this latter provision is based is that in case the will can, for any reason, be shown to be invalid, and an intestacy be made out, the county or State, as the case may be, is interested, and must be given opportunity to show it, as in default of such heirs, or next of kin, or husband, or wife, the State would take the property as in case of an escheat. See GomhauU v. Public Administrator, 4 Bradf. 226, which is considered as establishing the rule. In that case there ap- peared to be a reasonable chance of proving lack of testamen- tary capacity. But unless there seemed to be such a reasona- ble chance of preventing probate, the attorney general and public administrator will not be zealous to contest probate ; and this provision is chiefly precautionary, though none the less to be observed. § 19. Intervention of interested parties.— The practice in the Surrogate's Court is peculiarly favorable to the admission of parties claiming or having any interest in the estate. Lawrence V. Parsons, 27 Ho w. Pr. 26. The line is usually sharply drawn PftOCEDURB OF PROBATE PROCEEDINGS. 341 between those who must be cited and those who may become parties, the first class being necessary for jurisdictional pur- poses, and with a view to the finality" of the decree to be en- tered, the second looking to the protection of any whose rights might be prejudiced by the decree if they were not represented in the proceeding ; thus the Code provides that : Any person although not cited who is named as a devisee or legatee in the will propounded, or as executor, trustee, devisee or legatee in any other paper purporting to be a will of the decedent, or who is otherwise interested in sustaining or defeating the wiU may appear and at his election support or oppose the apphcation. A person so appearing becomes a party to the special proceeding. §3617, Code Civil Proc. But this section does not affect the right or interest of such a person unless he so becomes a party. In 1894 there was added to this section by amendment, the following provision : And in case the will propounded for probate is opposed, due and timely notice of the hearing of the objections to the wUl shah be given in such manner as the surrogate shall direct, to all persons in being who would take any interest in any property under the provisions of the wUl, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding, and any de- cree in the proceeding shall not affect the right or interest of any such person unless he shall be so notified. The first part of this section giving a person the right to ask to be allowed to intervene in a proceeding for the probate of a will for the purpose of protecting his own interests has been held not to lay down a new rule but only to be a formulation in this respect of the law as it existed before the Code went into effect. Lafferty v. Lafferty, 5 Kedf. 356, citing Booth v. Kitchen, 7 Hun, 255 ; WaUh v. Ryan, 1 Bradf. 433 ; Marvin V. Marvin, 11 Abb. N. S. 97 ; Children's Aid Society y. Lover- idge, 70 N. Y 387 ; Turhune v. B roolffleld, 1 Redf. 220. In the case first cited Surrogate Livingstone showed that under the act of 1837 (chapter 460, section 4), " an executor, devisee or legatee named in any last will or any person inter- ested in the estate might have such will proved." 342 surrogates' courts. As has already been said in another connection, a person claim- ing to be so interested must show to the satisfaction of the Sur- rogate that he comes within one of the classes described in the Code. If the person claiming to be interested claims under some testamentary document other than the will propounded, he must prove the provisions of the document under which he claims, so as to show the Surrogate the nature and extent of his interest. Matter of Hamersley, 43 Hun, 639. In 1863 Surrogate Gideon J. Tucker held that if parties claim- ing to be interested filed a verified claim of interest and appeared in open court on the return day, that the filing of the claim constituted the claimant a contestant and a party to the pro- ceedings, and his appearance constituted a waiver of a service of citation. N'orton v. Lawrence, 1 Eedf . 473. He further held that should his interest be disputed he was bound to prove his interest and tliat where issue was taken on the allegation of interest the evidence in relation to that question and that which related to the proof of the will should proceed pari passu. This has not been changed. The case of Jones v. Hamersley, 4 Dem. 427, contains a careful discussion by Surrogate Rollins showing a correct limitation on the rights of interveners to raise questions in the proceeding for the determination of the Surrogate. The second part of section 2617 above quoted has for its object, not the protection of the rights of the next of kin, or heirs-at-law ; for they are entitled to citation under section 2615. It aims to protect legatees and devisees under the will, who, but for the provisions of this section might have no knowledge of the pendency of a proceeding in which a decree might be made rejecting the will under which they are beneficiaries. Cooh V. White, 43 App. Div. 388, 390. But where one is not required to be cited on probate, and does not in fact intervene, a decree, den3'ing probate to a codi- cil is, as to personalty, conclusive upon him, and section 2617 is not applicable. Matter of Tilden, 32 Misc. 118, 119, citing Code Civ. Proc. §§ 2626, 2627 ; Vanderpoel v. Van Valkenhurgh, 6 ]S\ Y. 190 ; Marvin v. Marvin, 2 Abb. N". S. 100, 101 ; Iloyt V. Iloyt, 1 12 N. Y. 493 ; Post v. Mason, 91 N. Y. 539 ; Smith v. Hilton, 19 ISr. Y. St. Eep. 340. § 13. The petition must be filed — ^The practitioner having prepared his petition in the name of a person known to be PEOCEDTJRE OP PROBATE PROCEEDINGS. 343 qualified to propound the will, and having prayed for the cita- tion of all necessary persons, and having exercised his discre- tion in regard to the citing of such other parties iu interest upon whom he deems it necessary that the decree of probate when obtained should be conclusive, and having satisfied him- self that the will is one of which the Surrogate of the county in which his application is made has jurisdiction will commence his proceeding hj filing the petition ; and it is good practice to iile the will at the same time, it being required in New York County by Rule -i ; whereupon the clerk of the Surrogate will prepare the citation and deliver copies thereof to the at- torney for service. In the larger counties it is customary for the attornej'' to make the copies. The rules for the service of the citation have been carefully elaborated in chapter I, part II, §§ 3 to 13, ante, q. v., as well as the rules governing the return day. In New York County, Rule 4 provides : " The will shall be filed with petition for probate, unless upon good cause shown by alBdavit the Surrogate dispenses therewith, in which case it must be filed at least two days before the return day of the citation. In all cases a copy of the will must be filed with the petition." The practice in cases where new parties necessary to the pro- ceeding are discovered after the filing of the original petition, is not by amending the petition, but by filing a supplemental petition under which the additional party is cited. This can be done even after the decree admitting the will to probate has been made {Matter of Odell, 1 Misc. 390), upon an application of course to open the decree and give the petitioner an opportunity of being heard in opposition. In view of the fact that the service of citation has a twofold object, first to advise the party interested of the- proceeding, second, and equally important, to give the court jurisdiction of the persons served, it follows that where it is necessary to file a supplementary petition and issue a supplementary citation, it is unnecessary again to serve those already cited. Upon the discovery of the existence of an additional neces- sary party the proceeding is suspended until he is brought in in the manner already specified. In the Matter of Odell, 1 Misc. 390. The practitioner should in the calculation of a return day, 344 SUKROGATES' COURTS. fix it at a time which will allow for the time of the service on the newly discovered person in interest. Should the return day as fixed by the service of the original citation be overlapped, it will be necessary to adjourn the original return day in order that all the parties may be represented upon one return day. In the absence of infants, practitioners are reminded of the great value in shortening proceedings in the Surrogates' Courts, by the use of waivers and consents ; these waivers and consents should be carefully drawn and should cover the precise point contemplated, in which case they are conclusive upon the par- ties signing them, and are most efficient in expediting pro- ceedings in this court. See C. C. P. § 2528, as amended by chap. 570, Laws, 1896, as to proper execution of waivers. § 14. Parties in interest under will other than that pro- pounded The provisions of the Code (C. C. P. § 2617) in which it is provided that a person " named as an executor, trus- tee, devisee or legatee in any other paper purporting to be a will of the decedent " may intervene as a party, has already been referred to in a preceding section. The object of this section is to consolidate proceedings relating to the probate of the last will and testament of any decedent. The idea of the statute is to enable the Surrogate to deter- mine in admitting a paper to probate that it is in fact the last will of the decedent. It becomes therefore most important that the person claiming under some paper other than the one pro- pounded as a will should either produce the same, or offer sat- isfactory proof to the Surrogate that the other paper under which he claims was in existence when the decedent died, or that it had been previously lost, or, without his procurement, destroyed. liamersley v. .Lochman, 2 Dem. 524. See also Mat- ter of Ilamersley, 43 Hun, 639 ; S. C, 7 JST. Y. St. Pep. 592. § 15. Return day. — It is necessary to summarize, in this con- nection, some of the rules already elaborated elsewhere as to the fixing of the return day. Section 2530 of the Code requires a citation to be served within the county of the Surrogate, or an adjoining county, at least eight days before the return day thereof ; if in any other county, at least fifteen days before the return day. This is quite irrespective of the question whether the person served is a resident or non-resident. A non-resident, if he is served within the State, is brought within the Surro- gate's jurisdiction. Matter of Washburn, 12 Misc. 242, 244, PROCEDURE OP PROBATE PROCEEDINGS. 345 Silkman, Surr. Where the service is required to be by publi- cation, in a case allowed under section 2522, the service must be completed as required by section 2525, at least thirty days before the return day, if within the United States, and forty days if without. But this does not mean that the return da.y must be fixed at a time to allow such thirty or forty days' service, where there are necessary parties known to be non-residents, or where a foreign corporation is intended to be served. If service can ba secured upon them within the State, or admissions of the ser- vice duly acknowledged are filed, or a duly executed and ac- knowledged waiver of the issuance and service of the citation is fi.led, it is not compulsory that non-residents be served by publication, or that the longer period be regarded in fixing the return day. Matter of Washburn, supra. See Matter of Porter, 22 N". Y. Supp. 1063. The Code merely requires that the cita- tion be made returnable upon aday certain, designated therein, not more than four months after the date thereof. C. 0. P. § 2518. The citation must be served within sixty days after it issues. § 2517, C. C. P. ; In re Bradley, 70 Hun, lOi. And it is customary for the Surrogate to fix the return day, taking into consideration the time in which service may be made. Merritt's Will, 5 Dem. 544, 545. But if petitioner shows by aifidavit that although there are non-resident parties, service may be made upon them within the State, the Surro- gate has power to fix any day within the limits, eight days and four months, which may suit his convenience and that of the proponent. Matter of Washhurn, supra. § 16. The hearing. — The hearing is usually begun upon the return day, but may be had on any subsequent day which may on the return day be designated. This is not inconsistent with section 2618, which provides that " upon the return of the cita- tion the Surrogate must cause the witnesses to be examined before him." The proofs of service of the citation or the proper waivers must be filed on or before the return day. And in New York County Eule 4 requires that the probate clerk must have at least two days' notice in all probate cases where all parties in interest have waived the service of citation before the testimony of the subscribing witnesses will be taken. §17. Special guardians in probate cases. — Infant parties 346 SURROGATES COURTS. must be represented by guardians ad litem. Where there is no application prior to the return day on behalf of such an infant party the Surrogate will appoint a special guardian to protect the interests of the infant. It is the practice to insert in cita- tions to infants a clause advising them that in the event of their not appearing b\r general guardian and of their failure to ask for the appointment of a special guardian, such a special guar- dian vi'ill upon the return of the citation, be appointed by the Surrogate. Pm'e v. i'enw, 3 Dem. 341, 345, Rollins, Surr. The Code regulates the power to appoint in section 2530, which is as follows : Special guardian ; when to he appointed. Whei'e a party, who is an infant, does not appear by his general guardian ; or where a party, who is a lunatic, idiot, or habitual drunkard, does not appear by his committee, the surrogate must appoint a competent and responsible person, to appear as specinl guardian for that party. Where an infant appears by his general guardian, or where a lunatic, idiot, or habitual drunkard, appears by his committee, the surrogate must inquire into the facts, and must, in like man- ner, appoint a special guardian, if there is any ground to suppose that the interest of the general guardian or commit- tee is adverse to that of the infant, or incompetent person ; or that, for any other reason, the interests of the latter re- quire the appointment of a special guardian. A person can- not be appointed such a special guardian, unless his written consent is filed, at or before the time of entering the order appointing him. § 3530, Code Civil Proc. The New York Surrogate's Court regulates the appointment of special guardians as follows : " Rule 10. No special guardian to represent the interests of an infant in any proceeding in said Surrogate's Court will be appointed on the nomination of a proponent or the accounting party, or his attorney, or upon the application of a person hav- ing an interest adverse to that of the infant. To authorize the appointment of a person as a special guardian on the applica- tion of an infant or otherwise in a proceeding in this court, or to entitle a general guardian of such infant to appear for him in such proceeding, it must appear that such person, or such general guardian, is competent to protect the rights of the in- PEOCEDUKE OP PROBATE PEOCBEDINGS. 347 fant, and that he has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of any party to the proceeding. "Where the application for the appointment of a special guardian is made by another than the infant, or where the general guardian appears in behalf of the infant, it must appear that such applicant or general guar- dian has no interest adverse to that of the infant. If such applicant or general guardian is entitled to share in the distri- bution of the estate or fund in which the infant is interested, the nature of the interest of such applicant or general guardian must be disclosed. The application for the appointment of a special guardian as well as the appearance filed by a general guardian of a minor must, in every instance, disclose the name and residence and relationship to the infant of the person with whom the infant is residing, whether or not he has a parent living, and if a parent is living, whether or not such parent has knowledge of and approves such application or appearance ; and such knowledge and approval must be shown by the affi- davit of such parent. If the infant has no parent living, like knowledge and approval of such application or appearance by the person with whom the infant resides must be shown in like manner. Where such application is made by an infant over the age of fourteen years, his petition must show and be accom- panied by the affidavit of the parent (in case the latter has an interest adverse to that of the infant), showing, in addition to such knowledge aforesaid, that such parent has not influenced the infant in the choice of the guardian." § 18. Citation only need be served in probate cases in New York County. — It is unnecessary in the New York Sur- rogate's office to serve the petition or other papers on which the citation may be issued with the citation to attend the pro- bate. Eule 3, N. Y. Surrogate's Court. § 19. Tlie examination of witnesses. — The Code provides, by section 2618, that. Upon the return of the citation, the surrogate must cause the witnesses to be examined before him. The proofs must be reduced to writing. Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, and competent and able to testify. Before a nuncupative wiU is 348 STJKEOGATES' COURTS. admitted to probate, its execution and tlie tenor thereof must be proved by at least two witnesses. Any party, who con- tests the probate of the will, may, by a notice filed with the surrogate at any time before the proofs are closed, require the examination of all the subscribing witnesses to a written win, or of any other witness, whose testimony the surrogate is satisfied may be material ; in which case, all such witnesses, who are within the state, and competent and able to testify, must be so examined. § 2618, Code Civil Proc. The provision that the Surrogate must cause the witnesses to be examined before him does not debar him from devolving this duty upon the clerk of the court in uncontested cases, or where all the parties entitled to be cited are before the court. This right he has under section 2510 which provides : The clerk of the surrogate's court, in addition to the powers enumerated in section twenty-five hundred and nine, may exercise, concurrently with the sm-rogate of the county, the following powers of the surrogate : On the return of a citation issued from such surrogate's court on a petition for the probate of a will, where no objection to the same is filed ; or, where all the persons entitled to be cited, sign and verify the petition, or personally, or by attorney, appear on the pro- bate thereof, cause the witnesses to the will to be examined before him. Such examination must be reduced to writing, and for such purpose he is hereby authorized to administer and certify oaths and affirmations in such cases in the same manner and with the same effect as if administered and cer- tified by the surrogate. § 3510, Code Civil Proc. This power is exercised in proper cases in the County of !New York by the probate clerk. The power was originally not given in all the counties of the State, but in 1894: section 2510 was amended by leaving out the words of special designation, and it is now applicable to the clerks of all Surrogates' Courts, and by the amendment of 1887 (chapter 701) to section 2546 of the Code, the Surrogate in New York County was given power to direct an assistant to take and report the testimony in probate cases. This power is valid. The assistant is known as the probate clerk. He has no authority to pass upon the issues involved. Section 2546. PROCEDURE OF PROBATE PROCEEDINGS. 349 The object of the amendment, which was prepared by Judge Eollins, was stated by Surrogate Eansom [Matter of AUemami, 1 Connoly, 441), to be to enable the Surrogate to take such material, competent and relevant evidence, and such only, as pertained to the issues before the court, and thus afford the Surrogate some aid in disposing of the great and constantly in- creasina: volume of business with which the court was being overburdened. Consequently, the words in section 2546, that the assistant is without authority to pass upon the issues, do not prevent him from passing upon objections to the admissibility of evidence. Matter of Allemann, page 443. Nor do the words, "on the written consent of all the parties appearing," refer to the desig- nation of the assistant but only to the appointment of a referee. lUd. § 20. What witnesses to be examined. — Two, at least, of the subscribing witnesses must be produced and examined, if so many are within the State and competent to testify. Sec- tion 2618. They must be produced by the proponents, not in pursuance of any mandatory requirement of law, but because there can be no probate until they are produced and examined, and the Sur- rogate is satisfied of the genuineness of the will, and of the validity thereof. Section 2622. And, as will be seen later in the discussion of contested probates, the duty of producing wit- nesses other than subscribing witness under the notice allowed by section 2618, also rests upon proponents for the same reason, indicated by Surrogate Eollins, that the contestants could, by filing such a notice, and by satisfying the Surrogate of the ma- teriaUty of the witnesses specified therein, effectually block pro- bate until such witnesses were produced and examined. Iloyt V. Jackson, 2 Dera. 443, 455 ; Matter of McQovern, 5 Dera. 424, 426. If the proponent cannot produce the necessary sub- scribing witnesses he must satisfy the Surrogate of the sickness, death, absence from the State, lunacj', or other in- competency of such witness in the manner required by section 2619. For, in the absence of such explanatory proof, pro- bate will be refused. Oraber v. Saaz, 2 Dem. 216, Eollins, Surr. §21. Incompetency of witness, how shown.— The provi- sions of section 2619 are as follows : 350 surrogates' courts. The death, absence from the state, lunacy, or other in- competency of a witness, required to be examined, as pre- scribed in this or the last section, or proof that such witness cannot, after due diligence, be found within the state or else- where, must be shown by affidavit or other competent evi- dence, to the satisfaction of the Surrogate, before dispensing with his testimony. Where a witness, being within the state, is disabled from attending, by reason of age, sickness, or infirmity, his disability must be shown in like manner; and in that case, the testimony of the witness, where it is required, and he is able to testify, must be taken in the manner pre- scribed by law, and produced before the Surrogate, as part of the proofs. § 3619, Code Civil Proc. § 22. The examination. — It is not necessary that the Surro- gate should make any order requiring the attendance of the subscribing witnesses. It is the proponent's duty to produce them. Matter of Mc Govern, 5 Dem. 424. But if such witnesses refuse to attend, the Surrogate has power to compel their attend- ance by subpoena, and to punish them for contempt in case of disregard of the subpoena when served. Section 2481. The re- quirement of section 2618 as to the producing of two witnesses is limited by the words " if so many are within the State." See Stoenarton v. Hancock, 22 Hun, 38, construing similar provision before the Code, " if so many are living within this State." If the}' are, the testimony of neither can be dispensed with {Chapman v. Eodgers, 12 Hun, 342, 345) unless, it seems, by express waiver of all parties entitled to citation, being of full age {Id.), in which case the Surrogate would be bound to in- quire more particularly into all the.faots and circumstances in corroboration of the witness examined. And even though the subscribing witnesse's are examined, there is no rule forbidding the introduction of other witnesses to the due execution of the will. Reeve v. Crosby, 3 Redf. 74, 77, citing Trustees of the Theological Serfiinary v. Calhoun, 25 N. Y. 422; Peebles v. Case, 2 Bradf. 226. (See p. 148, ante>, § 23. Competent subscribing witnesses, — Section 2618 fur- ther limits the compulsory production of " two at least of the' subscribing witnesses," by the words, " competent and able to testify." The courts have freely construed the word "com. petent." Thus, while an attornej' is prohibited by sections 835 and 836 of the Code from disclosing communications made by PROCEDUBE OP PROBATE PROCEEDINGS. 351 his client to him, or his advice thereon, unless the client waives his privilege, yet the Court of Appeals held in Matter of Cole- man, 111 N. Y. 220, that the request to his attorney to sign as a subscribing witness was to be deemed a waiver of the stat- ute, and Surrogate Ransom held {In re LainVs Will, 18 N. Y. Supp. 173), that such waiver extended " to all communications and transactions had between the testator and his attorney having reference to the paper under consideration." (See^^os^, p. 35T, under lost will.) But section 836 of the Code was amended to meet the rule laid down by the Court of Appeals (see L. 1893, ch. 295), by providing that "nothing herein con- tained shall be construed to disqualify an attorney in the pro- bate of a will heretofore executed or offered for probate or hereafter to be executed or offered for probate from becoming a witness, as to its preparation and execution in case the at- torney is one of the subscribing witnesses thereto." § 836, C. C. P. See III re Gagan's Will, 20 N". Y. Supp. 426. This amendment was thus merely declarative of the law as it was stated to be in the Coleman case. But it was held {Matter of Sears, 33 Misc. 141), that unless an attorney who drew a will was such subscribing witness, he cannot testify to its execu- tion by his client. See Matter of CNeil, 26 N. Y. St. Eep. 242. " A person is not disqualified or excused, from testifying respecting the execution of a will, by a provision therein, whether it is beneficial to him or otherwise." Code Civ. Proc. § 2544. This section limits the testimony such a person is not disqualified from giving, to that relating to the execution of a will. Its terms clearl}' refer only to subscribing witnesses to a will {Matter of Eysainan, 113 N. Y. 62, 75), and was intended to make all such witnesses competent to testify in a Probate Court to the execution of the will, however their interest might arise. It was not intended however to operate as a repeal of section 829 {Cadmus v. Oakley, 3 Dem. 324, 328), prohibiting legatees or devisees from testifying concerning any personal transaction or communication between the witness and the de- cedent. Euger, Ch. J., observed in Matter of Eysaman, supra : "The evidence authorized to be given by section 2544 refers to that given in Surrogates' Courts alone, and relates solely to the subject of the execution of the will," and he points out that the reason for exempting subscribing witnesses from the appli- cation of the general rule of exclusion, made by section 829, is 352 SUKROGATES' COUETS. obvious, as their testimony is made indispensable, if obtainable, to the probate of a will under sections 2618 and 2619. § 23a. Same subject. — While a legacy, devise, interest, or appointment of any real or personal estate made in a will to a person who is a subscribing* witness thereto is void when the will cannot be proved without the testimony of such wit- ness (2 E. S. chapter 6, title 1, section 50), such person is neverthel&s a competent witness respecting the execution of the will, and can be compelled to testify respecting its execu- tion. Ibid.; Matter of Eysaman, m ISI. Y. 62, Y6. So an executor who is a subscribing witness, is competent to prove the execution of the will. Levy's Will, 1 Tuck. 87 ; ChildrerCs Aid Society v. Loveridge, 70 N. Y. 387 ; McDonough v. Lougli- lin, 20 Barb. 238 ; Rugg v. Rugg, 83 N. Y. 592. And the commissions to which he is entitled do not constitute such a beneficial interest as to disqualify hira. Reeve v. Crosby, 3 Redf. 7i. Where he is a legatee, but only to the extent of a sum specified to be by way of compensation for his services as executor, although in addition to his lawful commissions, the same is true. Pruyn v. BrinJcerhoff, 57 Barb. 176. § 235. Dispensing with testimony of subscribing witness. — Section 2619 above quoted permits the dispensing with the testimony of a subscribing witness who is proved, to the satis- faction of the Surrogate, to be dead, absent from the State, a lunatic, or incompetent under some provision of the law to testify or who, it is proved, cannot after due diligence be found within the State or elsewhere. But when such a witness's testimony has been dispensed with the will need not fail of probate for lack thereof. His testi- mony, when he is merely absent from the State, may, if it ap- pears it can be done, be taken by commission. But in all other cases the will is established by the methods provided by sec- tion 2620, discussed in section 26 below. Section 2538 of the Code makes applicable, in Surrogates' Courts, the provisions of sections 887-913, which relate to taking depositions without the State for use within the State, as well as sections 870-886 which relate to depositions taken and to be used within the State. Where therefore a necessity arises for taking testimony in this wajr for use in the Surrogate's Court the practitioner will resort to the ordinary practice. Matter of Plumb, 64 Hun, PIlOCEDXJflE OP PROBATE PROCEEDINGS. 353 317. The rule as to " due diligence" is expressly emphasized in section 2620. Leslie v. Leslie, 15 "Week. Dig. 56. The ap- plicant must offer an affidavit showing the necessity for the commission. It may be made by the party, or by his attor- ney, or his agent. Eaton v. North, 7 Barb. 631 ; Ball v. Dey, 7 Wend. 513 ; Rule 24, Hun's Rules. The Surrogate has dis- cretionary power to grant a stay pending the execution of the commission, which he may revoke, if it is not diligently proceeded with. Notice of the application must be given to the other parties to the proceeding. § 889, 0. 0. P. After hearing the parties, or upon the stipulation, if it issue on con- sent, the Surrogate will make an order which will contain directions as to interrogatories if they be required. Or he may allow an open commission, upon oral questions. § 893, C. C. P. The proposed interrogatories and cross-interrogato- ries may be settled by consent, or by the court upon notice. The commission issues under this order, and endorsed upon it are the directions for executing the same directed to be an- nexed by sections 901 and 902, C. C. P. The commission must be made under the seal of the court. M. <& H. 0. Co. v. Pugsley, 19 Hun, 282. But this can be waived. Churchill v. Carter, 15 Hun, 385. § 24. Resident subscribing witness's testimony not to be dispensed witli. — But when a subscribing witness is within the State but is, by reason of age, sickness, or infirmity, dis- abled from attending, such disability must be proven to the satisfaction of the Surrogate by affidavit or other competent evidence (0. C. P. § 2619). The testimony of such a witness where it is required, if he be able to testify, must be taken in the manner prescribed by law and produced before the Surro- gate as part of the proofs. The manner of taking the testimony of such an aged, sick or infirm witness is expressly prescribed (0. 0. P. §§ 2539, 2540). Upon proof by affidavit to the satisfaction of the Surrogate that the testimony of the witness is material and necessary, and that he is so aged, sick or infirm as to be unable to attend and is a resident of the county, the Surrogate must in a proceeding to prolate a will proceed to the place wh'ere the witness is, and there, as in open court, take his examination. Provision is ex- pressly made that such notice of the, time and place of this examination must be given as the Surrogate may prescribe to 23 354 SUBKOGATES' COURTS. any parties who have appeared in the proceeding, or to any party to whom the Surrogate in his discretion requires notice to be given. § 25. Same. — Where all these facts are shown to the satis- faction of the Surrogate with the exception that it appears that the subscribing witness to the will is in another county, it is provided that if the Surrogate has good reason to believe that the witness cannot attend before him within a reasonable time to which the hearing may be adjourned, he may make an order directing that the witness be examined before the Surrogate of the county in which he is. Such order must specify a day on or before which a certified copy thereof must be delivered to the Surrogate designated, and should direct to whom, and the manner in which, the notice of the examination is to be given. The Surrogate must then transmit a copy of this order, attested by the seal of his court, to the Surrogate whom he has desig- nated, together with the original will. The Surrogate designated, upon the day specified in the order, or upon an adjourned day designated in his own discretion, must take the examination of the witness as if he possessed original jurisdiction of the probate proceeding. The examina- tion must be reduced to writing and subscribed by the witness or otherwise duly authenticated, and must be certified by the Surrogate taking the examination, together with a statement of the proceedings upon the execution of the order designated ; and these papers, attested by the seal of the Surrogate who took the examination, must be returned without delay, and with the original will, to the original Surrogate, by whom all the papers must be filed. §26. Section 3620. If all the subscribing witnesses to a written will are, or if a subscribing witness, whose testimony is required, is dead, or incompetent by reason of lunacy or otherwise, to testify, or unable to testify ; or if such a subscribing witness is absent from* the state ; or if such a subscribing witness has forgotten the occm'rence, or testifies against the execution of the will ; the will may nevertheless be established, upon proof of the handwriting of the testator, and of the subscribing witnesses, and also of such other circumstances as would be suflScient to prove the will upon the trial of au action. Where a sub- Scribing witness is absent from the state, upon application PROCEDURE OF PROBATE PROCEEDINGS. 355 of either party, the surrogate shall cause the testimony of such witness to be taken by commission, when it is made to appear that by due diligence such testimony may be obtained. Where a written will is proved as prescribed in this section, it must be filed and remain in the surrogate's oflflce. But where it shall be shown, by affidavit or otherwise, to the satisfaction of the Surrogate, that the decedent left real or personal prop- erty in another state or territory of the United States or in a foreign country, and that the laws of such state, territory or country require the production of the original will before the provisions thereof become effective, the Surrogate may, at any time after probate, and upon such notice to the parties interested in the estate as he may think proper, cause any original will remaining on file in his oflSce to be sent by post or otherwise to any court which, or to any officer of such state, territory or country who, under the laws thereof, is empowered to receive the same for probate, or may deliver such will to any person interested in the probate thereof in such state, territory or country, or to his representative, upon such terms' as he shall think proper for the protection of other parties interested in the estate. Where in any matter be- fore the surrogate or in a surrogate's court the testimony of any witness shall be taken by or on commission, the same, together with the commission on which it is taken, shall be duly filed in the ofl3ce of the surrogate but need not be re- corded. The testimony, or other proceeding duly taken to be used before the surrogate or surrogate's court, by a stenog- rapher, shall be filed and need not be recorded. § 3630. Code Civil Proc. (As amended L. 1902, c. 114.) This section is substantially an embodiment of the pre-exist- ing statutes {Rolla v. Wright, 2 Dem. 482), but differs in one material respect. The former statute provided for the proof of the handwriting of a necessary subscribing witness who " should be shown to reside out of the State." Under this statute it was held that mere absence from the State of such a witness of a resident of the State would not authorize the Sur- rogate to admit such proof. Stow v. Stow, 1 Eedf. 305. But the inconvenience of such a rule led to the enactment of the law as it now stands. Where the necessary witness is absent from the State and the Surrogate is satisfied that his testimony cannot with due diligence be taken by commission, he may dis- pense with his testimony, and take proof of his handwriting 356 subrogates' coctkts. with that of testator under section 2620. In determining this question the Surrogate will construe " due diligence " not only in reference to the efforts of the proponent to ascertain the whereabouts of the witness, but also in regard to whether the proceedings will be unreasonably delayed. The Surrogate may permit resort to the proof allowed by this section where it is shown to his satisfaction that the absence of the witness from the State has been procured by persons interested in delaying or defeating the probate of the will. Matter of Dates, 12 N. Y. Supp. 205. In Matter of Briggs, 47 App. Div. 47, the sub- scribing witnesses to the will were dead. It was held that sec- tion 2620 gave the Surrogate the right to admit a will on less evidence than if both witnesses were living, by the words " of such other circumstances as would be sufficient to prove the will upon the trial of an action." The court says, at p. 50, " A will may be established upon the trial of an action by ordinary common-law evidence from which its execution may reasonably be inferred by the jury, although that evidence is given by but one witness," citing Harris v. Harris, 26 N'. Y. 433 ; Jackson v. Vichory, 1 Wend. 406, 412. That is, the question will be whether, upon the whole evidence, the jury may fairly infer that the requirements of the statute have been complied with. JJpton v. Bernstein, 27 N. Y. Supp. 1078. In the Briggs case the court held that declarations of the dece- dent as to the execution of the will, were competent in support of due execution, and afforded as strong an inference as to due execution as one derived from an attestation clause had there been one. § 27. The proof required to establish uncontested will. — "Where there is no contest, the proof required to satisfy the Sur- rogate is to be addressed to two points, (a) The genuineness of the will. (S) The validity of its execution. Section 2622 which prescribes this confers upon the Surro- gate the power to require in his discretion further proof. It is as follows : Before admitting a will to probate, the surrogate must in- quire particularly into all the facts and circumstances, and must be satisfied of the genuineness of the will, and the va- lidity of its execution. Before admitting a written will to PROCEDUKK OP PROBATK PROCEEDINGS. 357 probate, the surrogate may, in his discretion, require proof of the circumstances attending the execution, the delivery, and the possession thereof, or any of them, to be made by the affidavit, or the testimony, at the hearing, of the person who received the will from the testator, if he can be pro- duced, and, also, of the person presenting it for probate. § 2622, Code Civil Proc. The genuineness of the will propounded is usually established by the identification of the instrument by the witnesses when identifying their signatures as witnesses. But section 2622 enables the Surrogate, where that means of satisfying him fails by reason of failure of memory or of vagueness of the proof, or where one or both witnesses are dead, to fix the genuineness of the instrument not only by proof of the handwriting of the tes- tator and the witness or witnesses under section 2620, but by tracing it back through the proponent and the person who ob- tained the will from the testator, as, for example, the attorney who drew the will, who would be quite competent to testify to the fact that the will propounded is the will he drew and the testator signed. See Matter of Way, 6 Misc. 484. The proof necessary to satisfy the Surrogate as to the validity of the exe- cution of the will must of course be addressed to the various requirements of execution under the statute and is discussed in full in the next chapter under contested probates. § 28. Proof of lost or destroyed will. (See p. 567 et seq. ) A lost or destroyed will can be admitted to probate in a sun'ogate's court ; but only in a ease where a judgment es- tablishing the will could be rendered by the supreme court, as prescribed in section 1865 of this act. § 2621, Code Civil Proc. L. 1870, chap. 359, § 8; 2 R. S. 68, § 676. Section 1865 provides as follows : § 1865. Proof of lost will in certain cases. But the plaintiff is not entitled to a judgment, establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator's death or was fraudulently destroyed in his lifetime ; and its prov- isions are clearly and distinctly proved by at least two credible 358 surrogates' coxtrts. witnesses, a correct copy or draft being equivalent to one witness. The Surrogate's power to admit to probate a lost or destroyed will is purely statutory. Hatch v. Sigman, 1 Dem. 519. As are also the mode of procedure, the proof required and the re- strictions imposed. Surrogate Spring summarized the rules governing such cases as follows {Hatch v. Sigmcm, supra, p. 521) : " First. "Where a will, duly executed, has been lost or de- stroyed, by accident or design, before it was duly proved and recorded within this State, an action to establish it may be maintained. Code Civ. Proc. § 1861 ; Voorhees v. Voorhees, 39 N. Y. 463, affirming 50 Barb. 119. " Second. Since the enactment of the Code of Civil Proced- ure, proceedings to establish lost or destroyed wills can be en- tertained in a Surrogate's Court. Code, § 2621. " Third. Petitioner is not entitled to a decree establishing such will, unless 1st, the will was in existence at testator's death, or 2d, was fraudulently destroyed in his lifetime ; and, in either case, its provisions must be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. Code, § 1865 ; Keery V. Dimon, 37 N. Y. Supp. 92. " Fourth. The power of a court to admit to probate a lost or destroyed will exists only in the cases I have mentioned. Timon v. Olaffy, 45 Barb. 438, 446 ; Harris v. Harris, 36 Barb. 88, 97. In entertaining applications then under section 2621 to estab- lish alleged lost or destroyed wills. Surrogates must not relax the rules by which they are governed in admitting wills that are actually producible before them. See Matter of Eeiffeld, 36 Misc. 472. But, on the contrary, they will require unmis- takable evidence of the existence of a properly executed will {Matter of Purdy, 46 App. Div. 33), and " clear and distinct " proof of its provisions. See Sheridan v. Houghton, 6 Abb. N. C. 234 ; McNally v. Brown, 5 Eedf. 372. It is not necessary that the witnesses should remember the exact language used by the testator ; but they must be able to testify at least to the substance of the whole will, so that it can be incorpor- ated in the decree, should the will be adnaitted to probate. PROCEDURE OF PROBATE PROCEEDINGS. 359 In Matter of Purdy, supra, probate was denied because there was no evidence that the signature was made in the presence of both witnesses, or that decedent acknowledged his signa- ture, nor was there sufficient proof of the will's contents under section 1865. Mere proof of the existence of the will is not alone sufficient. It must be shown to have been lost, or fraudulently destroyed. If a will cannot be found which is known to have existed, the only presumption is that it was desti'oyed by the testator animo revocandi. Matter of Kennedy, 167 N. Y. 163, afif'g 53 App. Div. 105 and 30 Misc. 1 ; Matter of Nichols, 40 Hun, 387, 389, citing Idley v. Boioen, 11 "Wend. 227 ; Holland v. Ferris, 3 Bradf. 234 ; Hatch v. Sigman, 1 Dem. 519, 530, citing Betts v. Jackson, 6 "Wend. 173 ; BulMey v. Redmond, 2 Bradf. 281 ; Schultz v. Schultz, 35 N. Y. 653 ; Hard v. Ashley, 88 Hun, 103. See also Collyer v. Collyer, 110 N. Y. 481, 486 ; Knapp V. Knapp, 10 N. Y. 276. This presumption may be overcome by proof of the deposit of the will after execution with a cus- todian and that the testator had thereafter no access to it. In the Kennedy case, supra, it was held that it was incompetent to prove the existence of the will by declarations of the dece- dent (see opinion, reviewing cases). This is not at variance with Matter of Cosgrove, 31 Misc. 422. In that case there was evidence by disinterested witnesses that the will was, upon execution handed to the executor named in it, and there was no evidence that it ever returned into the possession of testa- trix. A week before her death it was proved she spoke of the will as in such executor's possession, and as satisfactory to her. Thomas, Surrogate, held that such declarations were compe- tent to rebut any inference of revocation arising from the loss of the will, occurring while the executor had it, citing Betts v. Jackson, 6 Wend. 173, 187, 188; Matter of Marsh, 45 Hun, 107. But the proof as to its loss or destruction must be such as to counteract the presumption of lawful intent to revoke, if it occurred before the alleged testator's decease. In other words, " He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by ade- quate proof." Gollyer v. Collyer, 110 N. Y. 481, 486. So if the evidence is conflicting and unsatisfactory, particularly, as to its contents, the application must fail. But the rule is liberal to this extent, that if the witnesses recollect the sub- 360 SUKROGATES' COURTS. stantial disposition of the property, and the names of the bene- ficiaries, the Surrogate is justified in decreeing it as proved. So Surrogate Livingston held that section 1865 should re- ceive a liberal construction, and the words "its provisions" must be " clearly and distinctly proved," should be deemed to refer to the disposing provisions of the wiU, and not necessarily to the appointment of an executor. Early v. Early, 5 Redf. 375, 386. See Matter of Purdy, 46 App. Div. 33. But where no two witnesses prove all the provisions, or prove any of them with suflBcient clearness to enable the court to more than sur- mise the nature of the will, probate must be denied. McNally V. Brown, 5 Redf. 372. It will not suffice to prove one pro- vision by two or more witnesses, and another provision in the same way by others, but each of the witnesses must be able to testify to all the disposing parts of the will. Oollyer v. Coll- yer, 4 Dem. 53 ; Matter of liuser, 6 Dem. 31, 33. Declarations of the testator as to its contents are not admis- sible (id.). So where the lawyer who drew the alleged lost will testified that " it either gave the whole estate to the wife absolutely, or it gave it to her for life with remainder to the children," Surrogate Coffin observed that this testimony " lacks the elements of clearness and distinctness which the statute exacts." Matter of Ruser, supra. See Grant v. Grant, 1 Sand. Ch. 235. See discussion by Beekman, J., of credible evidence in such a case. Kahn v. Hoes, 14 Misc. 63. § 29. Existence of will at testator's death. — The Court of Appeals has held, that where a will has been lost or destroyed, under circumstances showing that it was not done with the knowledge or consent of the testator, it may be established as his will whether the loss or destruction took place before or after his decease. Sohults v. Sohultz, 35 N. Y. 653. Sec- tion 1865 prescribes that such a will cannot be established " unless the will was in existence at the time of the testator's death, or was fraudulently destroyed in his lifetime." This, therefore, limits the case of fraudulent destruction as a ground for non-production of the will offered for probate to that taking place in testator's lifetime. It must also be a fraud as to the testator. Matter of De Groot, 9 IST. Y. Supp. 471. A destruc- tion without his knowledge or consent and in disregard of his intention, is such a fraud. Early v. Early, 5 Redf. 376. But mere proof of opportunity to destroy, or motive to destroy, is PEOCEDtTRE OP PROBATE PROCEEDINGS. 361 not enough to satisfy the statute, though it may have evidential weight in connection with other evidence. The burden of proof, of " clear and distinct " proof, is on the person claiming under the alleged will. Oolhjer v. Collyer, 110 N. Y. 481, 486 ; Betts v. Jackson, 6 Wend. 173 ; Knapp v. Knapp, 10 N. Y. 276. § 30. Due execution must be proved. — The Surrogate must require satisfactory proof that the will was executed as re- quired by our statutes. In this regard there is no distinction between a lost will and one actually laid before the court, ex- cepting that the court and the witnesses are deprived of the substantial aid to memory given by the sight of the will and of the recitals of an attestation clause. See Early v. Early, 5 Eedf . 376, and cases discussed. Surrogate EoUins {Matter of Paine, 6 Dem. 361) outlined the issues to be determined in a given case, substantially as follows : 1. Did the decedent, on a given "day, execute, in compliance with the requirements of law, a written instrument as and for his last will and testament ? 2. If he did so execute such instrument, did he, at the time of such execution, possess the testamentary capacity requisite for making a valid will ? 3. If he did so execute such instrument, was he induced so to do by undue influence or fraud ? 4. If not, have the provisions of such instrument been clearly and distinctly proved, as required by section 1865 of the Code of Civil Procedure ? 5. If such instrument was so executed, was it in existence at the time of the decedent's death ? 6. If such instrument so executed was not in existence at the time of this decedent's death, had it been fraudulently de- stroyed in his lifetime ? The statement of these issues indicates in general terms the issues the proponent of a lost or destroyed will must undertake to meet, and all of which he must meet by aflSrmative evidence. Counsel cannot stipulate the contents of a will, although it is proved that there was a will, and that it was duly executed. Matter of Buser, 6 Dem. 31. In this case the draughtsman of the will, an attorney, was doubtful whether the testator gave his estate to his wife abso- lutely or for life. Counsel for all parties entered into a stipulation 362 SUEEOGATES' COUETS. that the testator left his estate to his widow for her life with a remainder to his children . Surrogate Coffin very properly held that the statute contemplated no such royal road to probate and refused to give force to the stipulation. Section 835 of the Code does not, in such a case render the draughtsman of the will, an attornej'^, incompetent to testify as to what took place at the time of execution. Matter of Barnes, 70 App. Div. 525, 528, citing Hurlburt v. Rurlburt, 128 N. Y. 424 ; Rosseau v. Bleau, 131 'S. Y. 183 ; Matter of Chase, 41 Hun, 204 ; Sheridan. V. Houghton, 16 Hun, 628, afif'd 84 N. Y. 643 ; Eebbard v. Haughian, 70 N. Y. 55. But in this case the incompetency (discussed ante, at p. 352) was shown to have been waived by the testator at time of execution. § 31. Proof of codicil to or revocation of alleged lost or destroyed will. — In case, upon an application to prove a lost or destroyed will, one opposing its probate sets up an alleged codicil or a revoking clause in a later but also lost will, the question becomes material whether this codicil or later will and its execution and contents must be established in the same way and under the same rules required in order to the admission of the will sought to be probated. Surrogate Eollins intimates that it is not necessary, but that " any legal evidence which satisfies the Surrogate of the exist- ence of a will executed subsequently to the one offered for probate is sufficient also to justify the denial of probate to the earlier paper." And he held (Oolligam, v. McKernan, 2 Dem. 421, 425), that it was not, accordingly, necessary that two wit- nesses should testify as to the contents of the later instrument, nor was it necessary to show that such instrument was in ex- istence at the time of the testator's death, nor that, if not then in existence, it had been fraud ulentl}'^ destroyed in his lifetime. He bases this decision upon the decision of the Court of Ap- peals in Harris v. Ha/rris, 26 N. Y. 433, which held that the statutory provision respecting the mode of establishing lost wills related only to the special proceeding pointed out by the statute and did not abolish the common-law rule of evidence, which allowed the proof of a lost will by a single credible wit- ness. See Jackson v. Le Orange, 19 Johns. 386 ; Dan v. Brown, 4 Cow. 483 ; Jackson v. Betts, 6 Cow. 377 ; Chapman v. Rodg- ers, 12 Hun, 342, 347; Fetherly v. Waggoner, 11 Wend. 599; The learned Surrogate accordingly declared he would admit PEOCEDURE OE PROBATE PROCEEDINGS. 363 parol evidence of the execution of a later will as well as of the fact that it contained a revoking clause. See Collyer v. Oollyer, 4 Dem. 53, at page 59. In Matter of Meyers, 28 Misc. 359, a lost v?ill vi^as proved to contain a clause revoking an earlier will. The latter was ac- cordingly denied probate. § 32. Nuncupative wills. — A nuncupative will (so termed a nuncupando, that is from naming an executor by word of mouth) is a verbal testamentary declaration or disposition. By the common law, it was as valid in respect to personal estate as a written testament. A will could not only be made by word of mouth, but the most solemn instrument in writing might be revoked orally. In a rude and uncultivated age, to have required a written will would have been a great hardship, but with the growth and progress of letters, the reason for permitting a verbal tes- tament diminished in force, until finally an effort to establish such a will by means of gross fraud and perjury, gave rise to the Statute of 29 Charles II in 1676, termed the Statute of Frauds. Ex parte Thompson, 4 Bradf. 154, 155, citing Cole v. Mordaunt, 4 Yesey, 196. Originally nuncupative wills were valid, although not made in sickness. In the reign of Henry VIII (Perkins, 476), they were defined as properly made when the testator " lieth languish- ing for fear of sudden death, dareth not to stay the writing of. his testament, and therefore he prayeth his curate and others, his neighbors, to bear witness to his last will and declareth by word of mouth, his last will." In a treatise published in the time of King James I (Swin- bourne, page 32), it is said that this kind of testament is only made when the testator " is now very sick, weak and beyond all hope of recovery." It has now, therefore, become the doctrine that the nuncu- pative will is only to be tolerated when made in extremis. See Prince v. Hazelton, 20 Johnson, 501, 511, reviewing history of this subject, and citing 7 Bac. Abr. by G-willim, 305 ; 6 "Wood on Conveyances, 574. See also 2 Blackstone's Com. 500, 501, where the learned author says, referring to the Statute of Frauds, " thus has the legislature provided against aoy frauds in setting up nuncupative wills by so numerous a train of requisites that the thing itself has fallen into disuse, 364 SDRROGATK.S' COURTS. but in the only instance where favor ought to be shown to it, when the testator is surprised by sudden and violent sickness." See also cases of Philips v. The Parish of St. Clements, Danes, 1 Eq. Cas. Abr. i04, PI. 27, and Hedges v. Hedges, Prec. in Ch. 269 ; Gilb. Eq. Eep. 12. The rule contemplates cases where a man lies in extremis or being surprised by sickness or not having an opportunity of making his will, or lest he die before he could make it, gives away personal property with his own hand, if he dies, it operates as a legacy, if he recovers, the property reverts to him. At present the Revised Statutes cover the question of nun- cupative wills (see 4 R. S. 8th ed. 2546, art. 2, section 22), providing that no nuncupative or unwritten will bequeathing personal estate shall be valid unless made by a soldier while in actual military service, or by a mariner while at sea. See dis- cussion in Ex parte Thompson, 4 Bradf. 154, 156, containing extracts from the preface of the life of L. Jenkins, reviewing the testator's privilege in the Roman Army, and its influence among civil nations. Before the limitation of the rights of nuncupation to soldiers and sailors, it was essential that the will should be made in the last sickness. Prince v. Hazelton, and Ex parte Thompson, above cited. The only other inquiry which need now be made is whether the nuncupation was made by a person entitled to that privilege, so that the evidence necessary to be adduced is first on the question whether the testator properly falls within the class. In the case already cited {Ex parte Thompson) the decedent was a cook on board a steamship, and not what is ordinarily understood as a mariner, but the court held that as the terra " soldier " embraces every grade from the private to the highest officer (see cases cited) so the term " mariner " under the principle upon which the privilege of nuncupation is conceded must be applied " to all persons engaged in the marine service, whatever may be their special duty, or occupation in the vessel." See cases cited. All the court can demand is to be satisfied hy sufficient evidence as to the description of the last testamentary request or declaration of the decedent ; this being done, a decree for probate is made, into which the testamentary disposition is incorporated as a recital, and letters must issue. Of course " sufficient evidence " must include proof of the PROCEDURE OF PROBATE PROCEEDINGS. 365 testamentary capacity of decedent, and proof that the decla- ration of the decedent was intended to be testamentary, and of course the establishing of the will may be defeated by proof of improper or undue influence exercised upon the nuncupator m extremis. The opinion of Judge Woodworth in Prince v. Hasleton, above cited, is most exhaustive as to the sufficiency of evidence establishing a nuncupative will. It must be noted that the phraseology "soldier in actual military service," is unambigu- ous ; it is not enough to be a soldier or sailor, but there must be actual service, as under the rules prescribed by Julius Caesar, "amid the perils of warfare, the forms prescribed by law for the execution of a will were that the soldier might declare his last wishes by word of mouth." Ex parte Thornpson, above cited. From what has been said, it is clear what the necessary alle- gations in the petition propounding a nuncupative will must be. First, the petition should contain the allegations establish- ing the jurisdiction of the Surrogate to probate the will. See section 1. Then must follow description of the decedent as a mariner or soldier engaged in actual military operations (see Hubbard v. Hubbard, 8 N. Y. 196, and cases cited) and allega- tions sufficient to show that he was actually at sea, as a mari- ner, or in active military service. It is to be remembered that the courts have liberally construed the term " mariner " and "soldier," holding the terms to include the whole army, naval and merchant marine service. In the case of a mariner, it must appear that he was really at sea. The term " at sea " in this connection is held to mean the open sea, where the tide ebbs and flows. See Hubbard v. Hubbard, supra, and see Mat- ter of Wm. Gwin, 1 Tucker, 44, 45, citing Gilpin's E. 526 ; The Thomas Jefferson, 10 Wheaton, 428 ; Steamboat Orleans v. Phoebus, 11 Peters, 175 ; Earl of Easton v. Seymour, 2 Curteis, 339 ; 3 Curteis, 530, where a commander in chief of naval forces of Jamaica, lived on shore at his official residence and that of his family, and died there, it was held that he was not at sea. See also Goods of Lay, 2 Curteis, 375, where a seaman lying in the port of Buenos Ay res, had leave to go ashore, was in- jured and died; he was held by the English court to have been at sea and his nuncupative will made in extremis was ad- mitted ; but this was in a case where the decedent belonged to 366 subrogates" courts. a seagoing ship, and was upon a sea voyage. While the policy of the courts is to liberally construe the definition of mariner, at sea, or soldier in active service, yet from the very nature of the personal privileges granted to this class in making testa- mentary disposition of personal property, the courts will not enlarge the limit laid dovs^n by the statute within which such wills may be maintained so that the practitioner propounding such a will must be careful to affirmatively establish every necessary jurisdictional and evidential fact. § 33. The probate decree. — In case the will propounded for probate is not opposed, and no objections are filed, and notice served pursuant to section 2617, the petition with the proofs attached may be marked for decree, and the decree ad- mitting the will to probate and directing that letters testa- mentary issue to the executors named therein will be made pursuant to section 2623. This section will be discussed later on, following the chapter on contested probates. CHAPTER IV. CONTESTED PROBATES. § 1. The manner of beginning contest.— Every Surrogate's Court has the power to prescribe special rules as to the manner in which contestants must proceed in opposing the probate of a will. These rules must be observed so long as they are not inconsistent with the provisions of the Code or of any other statute. In the Surrogate's Court of the county of New York this procedure is defined by Eule 4 which is as follows : " A party seeking to contest the probate of a last will and testament must file a written appearance with the clerk of this court together with a written and verified answer, containing a concise statement of the grounds of his objection to such pro- bate, and any facts he may allege tending to establish a want of jurisdiction of the court to hear such probate. In case such jurisdiction shall be denied or the right of any objecting party to appear and contest shall be questioned, the court will first hear and pass upon the question of jurisdiction, or the status of the contestant, unless, for the convenience of the parties or the court, it shall be ordered otherwise. When a contestant files with the Surrogate the notice provided for by section 2618 of the Code of Civil Procedure, requiring the examination of ail the subscribing witnesses to a will, or any other material witness, he must present with such notice an affidavit showing the materiahty of the testimony of the witnesses or witness sought to be examined, and an order requiring the production by the proponent of such witnesses or witness. A copy of such order, if the same shall be signed, must be immediately served upon the proponent or his attorney. " In all cases of contests in probate proceedings, the proponents shaU, within five days after objections to the probate are filed, present a verified petition for and procure and enter an order directing notice of the time and place of hearing of such objec- tions to be given, and prescribing the manner of giving such (367) 368 subrogates' coukts. notice, to all persons in being who would take any interest in any property under the provisions of the will, and to the exec- utor or executors, trustee or trustees, named therein, if any, who have not appeared in the proceeding, as required by sec- tion 2617 of the Code, and such petition shall contain the names and addresses of such parties, and state whether any, and which of them, are infants or of unsound mind. In case the propo- nents shall not present such petition and enter such order within the time aforesaid, such petition may be presented and order entered by or on behalf of any party or parties interested in the estate. " Proofs of service of such notices must be filed with the pro- bate clerk at least four days before the date named therein for such hearing. " In probate proceedings, when all parties in interest have waived the service of citation, notice of at least two daj's must be given to the probate clerk before the testimony of the sub- scribing witnesses will be taken. " The will shall be filed with petition for probate, unless upon good cause shown by affidavit the Surrogate dispenses there- with, in which case it must be filed at least two days before the return day of the citation. " In all cases a copy of the will must be filed with the peti- tion." The provision of Rule i of the New York Surrogate's Court as to filing a written and verified answer by the one who is to contest defines what is good practice in all the Surrogates' Courts, under the provisions of section 2533 which permits any Surrogate to require a party to file a ■written petition or answer containing a plain and concise statement of the facts constitut- ing his claim, objection or defense with a demand of the decree, order or other relief to which he supposes himself to be entitled. Where such a rule obtains or where such an answer is directed to be filed the fundamental rules of pleading are applicable to it as to its form. However, it is undoubtedly the fact that Surrogates do not always require such strictness in regard to pleadings in their courts and it is customary to allow consider- able latitude by way of amendment, if upon the hearing it shall appear necessary to protect the rights of the party. The fol- lowing may serve as a precedent for the answer in a contested will case : CONTESTED PKOBATES. 369 Surrogate's Court, County of New York. Answer In con- ^^ ^^^^ Matter of Proving the" tested wUl case. ^^^^^ ^^s* "^i^ ^^'^ Testa- ment of S. P., Deceased. The answer of an infant and one of the heirs-at-law and next of kin of the above named decedent, by his Special Guardian, respectfully shows to the Court, on information and belief : I. That the paper writing bearing date the 8th day of May, 1897, and purporting to have been executed on that day, is not the last Will and Testament of said decedent. II. That the said alleged wiU was not duly executed by the said S. P., deceased; that he did not publish the same as his WiU in the pres- ence of the witnesses whose names are sub- scribed thereto ; that he did not request the said two witnesses to be witnesses thereto, and that the said alleged witnesses did not sign as wit- nesses in his presence or in the presence of each other. III. That on said day of 18 the said decedent, S. P., was not of sound mind or memory, or mentally capable of making a wiU. IV. That the said paper writing was not freely or voluntarily made or executed by the said S. P. as his last WUl and Testament, but that the said paper writing purporting to be his WiU was ob- tained, and the subscription and publication thereof, if it was in fact subscribed or published by him, were procured by fraud and undue in- fluence practiced upon the decedent by one (the principal legatee and devisee named in said paper) , or of some other person or per- sons acting in concert or privity with him, whose name or names are at present unknown to this contestant. V. That the paper propounded for probate herein is invalid as a last WUl and Testament, and is iUegal and void in respect to (the re- siduum thereby bequeathed.) 24 370 SUEKOGATKS' COURTS. Wherefore the above named infant by his Special Guardian, contestant, prays that this proceeding may be dismissed with costs. Signature, Special Guardian for infant, address. (Verification.) § 2. Fixing the time of hearing. — In the absence of such a rule as Rule 4 in New York County, a similar procedure is proper under section 2617, whereunder any person, " whether cited or not cited, who is named as a devisee or legatee in the will propounded, or as executor, trustee, devisee, or legatee in any other paper purporting to be a will of the decedent, or who is otherwise interested in sustaining or defeating the will, may appear, and, at his election support or oppose the application." In 1894, section 2617 was amended by adding the following clause : And in case the will propounded for probate is opposed, due and timely notice of the hearing of the objections to the will shall be given, in such manner as the Surrogate shall direct, to aU persons in being, who would take any interest in any property under the provisions of the wiU, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding, and any decree in the proceeding shall not affect the right or interest of any such person unless he shall be so notified. When it appears to the satisfaction of the Surrogate, or in the county of New York to the probate clerk, that all the neces- sary parties or the parties contemplated by this section have been cited, or served with notice of hearing of the objections, or have filed duly executed and acknowledged waivers of the issuance and service of citation, or have voluntarily appeared in the proceeding, a day is set for the hearing which thereupon proceeds before the Surrogate. It will be recalled that the Surrogate's power to appoint referees is limited by section 2546 to proceedings other than one instituted for the probate or revocation of probate of a will, except in the case of the Surrogates of the county of New York who may under written consent of all the parties appearing in CONTESTED PROBATES. 371 a probate case appoint a referee to take and report the testi- mony (but without authority to pass upon the issues involved therein) or such Surrogates may in their discretion direct an assistant to take and report the testimony, with a similar limi- tation. See section 2546 of the Code. See also Laws of 1885, chapter 367, as to the power of clerk in Kings County Surro- gate's Court to examine witnesses. It has been held that the assistant appointed by the Surro- gate of New York County, who is known as the probate clerk, in such cases may rule upon the admissibility of the evi- dence which may be offered. Matter of Alleman, 1 Connoly, 441. § 2a. Surrogate's control of the proceeding— Writ of pro- hibition. — In the Rice Will case, not yet reported (see Peo- jple ex rel. Patrick v. Fitzgerald, IST. Y. Law Journal, June 12, 1902), it was sought, by writ of prohibition, to prevent the pro- bate of one will, and the rejection of probate of a later will, the witnesses to which were under indictment. The Appellate Division laid down the following legal propositions : [See headnote.J " A writ of prohibition lies only where there is a want of ju- risdiction or where the court, judge or other tribunal is pro- ceeding in excess of the jurisdiction conferred. See cases cited. " Authorities regarding it as applicable to prohibit proceed- ings ' contrary to the general law of the land ' refer to pro- ceedings without permitting a party to be heard, and this means no more than excess of jurisdiction. " Errors of law or procedure must be corrected by appeal, and a writ of prohibition is not designed to regulate admission or rejection of evidence or the proceedings of an inferior court having jurisdiction. "The right to an adjournment rests in discretion, reviewable only by direct appeal, and the question of an adjournment of civil proceedings, arising out of the same facts as pending criminal proceedingi, until the determination of the criminal proceed- ings, is not a matter of strict legal right, reviewable by prohi- bition, but Involves the exercise of discretion, reviewable only by direct appeal. " A Surrogate has jurisdiction to decide whether to dismiss probate proceedings for want of proof, or to continue the pro- ceedings t<^ permit the presentation of further evidence, aijd 372 subeogItes' coubts. his dismissal for want of proof would not be a dismissal upon the merits. " A claim of privilege against self-incrimination, advanced by subscribing witnesses to a will under indictment, as an excuse for not testifying to the execution of the will, may properly be sustained. See cases cited. " A decision on appeal in prohibition proceedings is not to be construed as an approval of rulings in the inferior court on evi- dence, practice, procedure and discretion, such as are review- able on direct appeal. "Where a court refuses to grant an absolute writ, upon re- turn to an alternative writ of prohibition, a stay pending appeal from the final order refusing the absolute writ is unauthor- ized." §3. The hearing — Examination of witnesses. — Section 2618 has been already quoted in discussing how proof of a will must be taken which is not contested. All that has been said in that connection is applicable here so far as the proponent's case is concerned. It is his duty to establish the wiWprima facie, proving its due execution and the mental capacity of the testator ; the burden of establishing both is of course upon such proponent. Delafield v. Pa/rish, 25 E". Y. 9 ; Rollwagen v. Roll- wagen, 63 IST. Y. 504 ; Miller v. White, 5 Kedf. 320 : Legg v. Meyer, 5 Kedf. 320. It is true that there is a legal presump- tion that every man is compos mentis {Delafield v. Parish, 25 IST. Y. 9, 97), and that the burden of proving a decedent's un- soundness of mind is upon him who asserts the existence of that unnatural condition. Delafield v. Pa/rish, supra. But there is a distinction, which has been clearly drawn by the Su- preme Court {Ha/rper v. Harper, 1 T. & C. 355), in the follow- ing words : " It is the established rule of this State that the legal pre- sumption to begin with is, that every man is compos -mentis and the burden of proof that he is non compos mentis rests on the party who alleges that unnatural condition of mind existing in the testator. But it is also the rule that in the first instance the party propounding the will must prove the mental capacity of the testator." The practice is for the proponent to prove the formal execu- tion of the will and to show prima facie by the attesting wit- ness the decedent's age, mental competency, and freedom from CONTESTED PROBATES. 373 restraint ; the contestant then offers his evidence in support of his objections and the proponent in reply may offer rebutting evidence or strengthen his prima facie case as to the allegations which he is bound to maintain. It is one thing to say, that the burden of proving unsoundness of mind, that is lack of testa- mentary capacity, is on the contestant ; and quite another thing to say, that the proponent need not make out b, prima facie case of mental capacity in the first instance. This is manifest from the provisions of section 2623 which requires the proponent to satisfy the Surrogate that the testator was in all respects com- petent to make a will and not under restraint. Consequently if the proponent addresses his proof only to the question of ex- ecution and rests his case without showing affirmatively that the testator was of unsound mind and free from restraint, a suffi- cient case will not have been made out for admitting the will to probate. See Eamsdell v. Viele, 6 Dem. 2'14:, citing Dela- field V. Parish, 25 N. Y. 9, 34; Kingsley v. Blanohard, 66 Barb. 317, 322 ; Miller v. White, 5 Redf. 320 ; Cooper v. Benedict, 3 Dem. 136 ; Matter of Freeman, 46 Hun, 467. The Court of Appeals {Matter of Will of Gottrell, 95 N". Y. 329, 436), says by Euger, Ch. J. : " The determination of the question of fact involved in the inquiry .... is governed by the same rules which control the trial of other issues of fact. The proponent has the affirm- ative of the issue, and if he fails to convince the trial court by satisfactory evidence that each and every condition required to make a good execution of a will has been complied yith, he will necessarily fail in establishing such will." In spite there- fore of the elasticity of procedure occasionally obtaining in Surrogates' Courts the best practice is for the proponent to try a contested will case as strictly as he would any litigated action in the Supreme Court. § 4. Issues. — The character of the issues to be raised and tried on contested probate are readily inferred from the lan- guage of sections 2622 and 2623 of the Code, which are as fol- lows: Before admitting a wiU to probate the Surrogate must in- quire particularly into the facts and circumstances and must be satisfied of the genuineness of the will, and the validity of its execution. Before admitting a written will to probate, 374 surrogates' courts. the Surrogate may in his discretion require proof of the cir- cumstances attending the execution, the delivei'y and the possession thereof, or any of them, to be made by the affi- davit or testimony at the heaving of the person who received the will from the testator, if he can be produced, and also of the person presenting it for probate. § 2622, Code Civil Proc. If it appears to the surrogate that the will was duly exe- cuted and that the testator at the time of executing it was in all respects competent to make a will and not under restraint, it must be admitted to probate as a will valid to pass real property or personal property, or both, as the surrogate de- termines, and the petition and citation require, and must be recorded accordingly. The decree admitting it to probate must state whether the probate was or was not contested. § 2623, Code Civil Proc. § 5. Order for production of witnesses. — With regard to the form of procedure in a contested will case it is proper to know before proceeding to discuss the cases under the various grounds of contest, that it is competent for the Surrogate upon proper application bj' a contestant at any time before the proofs are closed, to require under section 2618, " the examination of all the subscribing witnesses of a written will or of any other witness whose testimony the Surrogate is satisfied may be material ; in which case, all such witnesses, who are within the State, and competent and able to testify, must be exam- ined." The hearing may also be adjourned if necessary for the issuance of a commission or for the designation of a Surrogate in an adjoining county or for the execution of such other order in the premises as the Surrogate may be empowered to make. See section 2619, and section 2620 discussed in chapter 3, ante, Surrogate's Court, New York County. Petition under § 2618, C. C. P. In tiie Matter of Proving the ) Last Will and Testament of >■ Deceased. ) State of New York, ^^ County of New York, j Note. Contest- ^o*e. being duly sworn, deposes ant may be an and says> that he is an attorney and counsellor CONTESTED PROBATES. 376 adult and if state the fact. so, Here state who witnesses are, and the facts rendering their testimony material. at law having offices at No. Street in the City of New York ; that on the (Jay of 189 he was appointed Special Guardian for an infant over the age of fourteen (H) years, who is interested in the estate of the alDove named decedent, having been adjudged to be a necessary party thereto by an order of this Court dated the day of 189 by which order he was made a party to these proceedings ; that as such Special Guardian deponent believes it to be his duty to contest the paper propounded as the last WiU and Testament of de- ceased, and has accordingly filed objections on behalf of said infant to the probate of said Will. That deponent has for some time been investi- gating this case, and has caused to be investi- gated the rights of his said ward, and he has made and caused to be made an examination rel- ative to the probable testimony and evidence to be adduced upon said contested probate, and deponent is informed and verily believes that the testimony of the following witnesses will be or may be material upon the said contest for the following reasons : On information and belief, is the propo- nent of the propounded paper, the petitioner herein, and is made legatee and devisee for life of the entire estate, except a few small legacies ; that he had for years resided with the decedent prior to his death, during which time it was diflB- cult to gain access to said decedent save in the eaid 's presence. Moreover, he is the per- son, who, it is alleged in the objections filed, ob- tained and procured the said will by the exercise of undue influence. On information and belief that the said decedent residing with said propo- nent for many years prior to his death, was' broken in health for many years prior to the ex- ecution of said will, and was mentally incapable at the time of making an independent, voluntary, uninfluenced last will and testament. On information and belief, that is a practicing physician and attended the decedent 876 StrRROGATKS' COUKTS. prior to his death and signed his certificate and record of death which is on file in the records of the Health Department in the City of New York. That Jane Doe and Mary Roe, as deponent is infornied and verily believes, were in attendance upon the said decedent at or about the time the said propounded paper purports to have been executed, and their real names are unknown to this deponent, but are known to the said propo- nent, in whose employ the}' were, as deponent is informed and believes, nor are their present addresses known to deponent. Wherefore deponent prays for an order direct- ing the production of the said witnesses upon said contested probate, pursuant to section 2618 of the Code of Civil Procedure. (Jurat.) (Signature.) Surrogate's Court, New York County. Notice of appli- In the Matter of Proving the cation for order Last Will and Testament of under §2618. Deceased. C. C. P. Sirs : Please take notice that pursuant to sec- tion 2618 of the Code of Civil Procedure, one of the contestants herein, an infant over the age of fourteen years, by his Special Guardian requires the production and examina- tion of the following named persons as witnesses : Petitioner, a practicing physician in the City of New York, Jane Doe and Mary Roe, servants in the em- ploy of the decedent, during the year prior to his decease (the said names Jane Doe and Mary Roe being fictitious, the said servants' real names being unknown to the contestant). Dated New York, 189 Yours, etc.. Special Guardian for Contestant. address- CONTESTED PROBATES. 377 At a Surrogate's Court, held in and for the County of New York, at the New York County Court House in the City of New York, on the day of 189S. Present : Hon. Surrogate. In the Matter of Proving the ") Last Will and Testament of [■ Order. Deceased. ) On reading and filing the annexed affidavit of verified the day of 189 to- gether with a notice for the production of certain witnesses herein, as provided by section 2618 of the Code of Civil Procedure, and upon aU the papers and proceedings herein, the Surrogate being satisfied that the testimony of the said witnesses whose names are mentioned in the notice hereto annexed may be material, and upon motion of said Special Guardian for an infant over the age of fourteen (14) years, contestant, it is Ordered, that the petitioner herein, produce for examination upon the trial of the issues herein Jane Doe and Mary Roe (the said names Jane Doe and Mary Roe being fictitious, their real names being un- known), servants in the employ of or in attend- ance upon said decedent, at the time of the execution of said wUl, at or about the 8th day of May, 1897 ; and it is Further Ordered, that a copy of this order be forthwith served upon all the parties who have appeared herein, or upon their attorneys. Surrogate. § 6. Who may contest probate. — The language of the Code 378 StJBROGATES* roirRTS. is very broad as to what persons may contest the probate of a will. It is contained in the first part of section 2617. Any person .... who is named as devisee or legatee in the will propounded or as executor, trustee, devisee or lega- tee, in any other paper purporting to be a will of the dece- dent, or who is otherwise interested in sustaining or defeating the will. This section has no connection with section 2624 as to the right to put in issue before the Surrogate the validity, con- struction, or eflfect of any disposition of personal property con- tained in a will. See Jones v. Hamersley, 4 Dem. 427, the cases under which are elsewhere discussed. The language of section 2617 is broad, the use of the words, " in any other paper purporting to be a will ; " includes papers of a testamentary character both prior and subsequent in date to the one offered for probate. See Matter of Greeley's Will, 15 Abb. N". S. 393. But the words, " who is otherwise interested in sustaining or defeating the will," while apparently broad and general, are limited hj the courts to persons who can satisfy the Surrogate by proper proof that they are interested in the probate of the will in substantiarlly the same way in which that interest is limited in the decisions under section 2624 above referred to, q. V. Therefore a person intending to contest a will must be prepared to establish by competent proof that he belongs to one of the classes specified. If he claims to be a devisee, or legatee in the will propounded, or an executor, trustee, devisee, or legatee in some other alleged will, the testamentary paper itself may indicate the contestant by name ; if he claims as one of a class he must prove that he belongs to that class ; if he bases his right under the words, " or who is otherwise in- terested in sustaining or defeating the will," he must prove such a legal interest as the Surrogate would be justified in recog- nizing. This naturally implies the right of the Surrogate to determine the status of the party proposing to contest. Matter of Ham- ilton, 76 Hun, 201, opinion of Van Brunt, P. J., at page 205. The contestant must state his interest with certainty. Public Administrator v. Watts, 1 Paige, 347. The contestants of a will have an absolute right to withdraw their objections, even against the protests of the attorney of CONTESTED PROBATES. 379 record, claiming a lien for services. Matter of Evans, 33 Misc. 567. In determining the status of the contestant it has been held that the Surrogate is not exceeding his jurisdiction or exercis- ing equitai)le powers if, for example, he declares an alleged widow of a testator not to be in fact such widow ; his decision as to her status does not amount to a decree annulling her marriage. See Matter of Hamilton, supra. In the case cited Van Brnnt, P. J., observes (where the alleged widotv of Robert Eay Hamilton contested probate of his will, her right to so contest being objected to by one of the legatees and the Surrogate found that she was never the wife, and therefore not the widow, of the decedent, and was not in anywise in- terested in sustaining or defeating his alleged wHl): "The appellant, by virtue of an alleged marital relation was seeking to enforce her rights in a court of law, which rights could be defeated by showing that no such relation existed, because, at the time of the attempted contract, of the disability of one of the parties. This has always been the rule, and the Surro- gate, in passing upon the status of this contestant, assumed no equity jurisdiction, but was passing upon a legal question." 76 Hun, at page 206. Where one, asserting herself to be the widow of the decedent, appeared and sought to contest his will. Surrogate Rollins passed upon the regularity of a decree annulling her marriage to a former husband, and held that, while the decree was defective in form under the statute, she might offer other proof that said first marriage was void in support of her claim that she was the widow of the decedent. Matter of Beihune, 4 Dem. 392. § 7. Same subject. — Where one claims to be the child of a decedent, born of a marriage contracted before the execution of the alleged will, he has no status to contest the probate of the will, but is confined to his remedy to recover his share of the property under 2 R. S. chap. 6, title 1, section 49, and sec- tion 1868 of the Code ; for such child is entitled only to that share of the estate which would have come to him had the parent died intestate (see Da/ois v. Davis, 27 Misc. 455), and only to that in case his birth occurred after the making of the will ; and that right does not aflfect the right of the proponent to have the wi^l probated. After the pi-obate of the will, re- sort may be h^ to the remedies afforded by section 1868 of the 380 SUllROGATES' COURTS. Code of Civil Procedure. Matter of Gall, 5 Dem. 374 ; Mat- ter of Bunce, 6 Dem. 278. In the last case where the decedent, an unmarried woman, died shortly after the execution of her will leaving a daughter born shortly before her death and after the execution of the wiU offered for probate. Surrogate Rollins held, that as such daughter would be entitled under the statute to succeed to the decedent's entire estate in the event of her intestacy, she was a proper contestant in the proceedings to prove the will. The after-born child has no status in court unless the Surro- gate ascertains that within the meaning of section 49 of title 1, chapter 6, part II of the Eevised Statutes, a settlement was in fact made for her or for her benefit by the alleged will ; if there was, then the child is not entitled to the share in the parent's estate as if the parent had died intestate, but is entitled to op- pose the probate of the alleged will upon any ground affecting its legality and validity. The Surrogate has power to pass on the regularity of adoption of a child. Matter of Thome, 155 N. Y. 140, aff'g 23 App. Div. 624. But where A claimed to be an adopted child and the Surrogate passed adversely on the claim, it was held that his decree to that effect was not a bar to a subsequent suit by A under the agreement of adoption to recover the estate which the decedent had agreed to leave him. BrantingJiam v. H^iff, 43 App. Div. 414. § 8. Same subject. — " Devisees " and " legatees " fall under two classes : those specified in the will offered for probate, and those claiming under a prior or subsequent will. Those claim- ing under the will offered for probate so far as rights to con- test are concerned have unquestionably the right to be made parties, for they may be next of kin or heirs, whose share in the estate would be increased by defeating the will or they may be in possession of alleged codicils to the will materially affecting its testamentary provisions, and which they are entitled to have acted upon in the pending proceeding. See Dyer v. Erving, 2 Dem. 160, citing Walsh v. Ryan, 1 Bradf . 433. Or the lega- tee may desire to oppose probate of a codicil which purports to revoke his legacy given under the will. Walsh v. Ryan, 1 Bradf. 433. Where the devisee or legatee claims under a will prior or subsequent to that propounded, it is immaterial whether he is an heir-at-law or next of kin of the decedent. Turhune V. BrooTcfield, 1 Eedf. 220. But if he claims under another will CONTESTED PKOBATES. 381 he must, in proving his status to the satisfaction of the Surro- gate, prove that such testamentary paper existed when the decedent died, or was lost or fraudulently destroyed, within the meaning of section 2621, before his death. Ramersley v. Lockman, 2 Dem. 521, 533. See also Will of Lucius Critten- den, 1 Tucker, 135. An executor or trustee named in a prior or subsequent will is expressly covered bj' section 2617 and has the right to contest the will propounded. Matter of Gree- ley's Will, 15 Abb. N. S. 393 ; People ex rel. Patrick v. Fitz- gerald, N". Y. Law Journal, June 12, 1902. § 9. Same. — The public administrator has been held entitled to contest a will of personal property {Oomhault v. Public Ad- ministrator, 4 Bradf. 226), and the attorney general a will of real property. Merrill v. Ralston, 5 Eedf. 220, 258. Surro- gate Livingston {Lafferty v. Lafferty, 5 Eedf. 326) held, when a devisee, named in a will offered for probate, executed a mort- gage, on real estate passing under the will, after the testator's death, the mortgagee or his administrator was a person suifl- ciently interested to intervene in the probate proceedings. A creditor of the decedent as such has no right to contest his will {Stapler v. Hoffman, 1 Dem. 63, 65) ; nor has the widow of a son of decedent's husband by a former wife ; nor has the wife of an heir-at-law a right by virtue of her inchoate right of dower {Matter of Rollwagen, 48 How. 103) ; nor can a receiver in supplementary proceedings of the property of a decedent's husband, contest her will, although she has thereby cut off the judgment debtor from any share of her estate. Matter of Brown, 4Y Hun, 360. The fact of incorporation or non-incorporation of an association is immaterial as to its right to contest, provided the association is competent to take a devise or bequest in the will propounded or in some other testamentary paper under which it claims {Carpenter v. Historical Society, 1 Dem. 606, citing Potter v. Chapin, 6 Paige, 639 ; Pe Witt v. Chandler, 11 Abb. Pr. 459 ; Owens v. Missionary Society, 14 N. Y. 380) ; nor is it material whether the force and effect of the objection which the contestant may raise may defeat the will in respect of a matter in which he may not be ultimately interested. For example, when the question of testamentary capacity is properly raised by a party having the right to raise it in some capacity, and where, upon the investigation \vhich succeeds, the Surro- gate becomes satisfied and finds that the testator had not mental 382 surrogates' courts. capacity to make a will, and that the instrument oflfered for probate was obtained by fraud and undue influence exercised upon one not capable of resisting the same, it is the Surrogate's right and duty to refuse probate of the will, even though the contestant who prosecutes the controversy is only interested as an heir-at-law and not one of the next of kin. Matter of Bar- tholich, 141 N. Y. 166, 172. § 10. What wills may be proved. — Before proceeding to discuss in detail the grounds upon which a will may be con- tested and the sufBciency of evidence to establish a will pro- pounded for probate, it is necessary to define clearly what wills may be proved in a Surrogate's Court. In the first place the Revised Statutes prescribe who may make a will of real and who of personal property. In the first regard the provision is, " All persons except idiots, persons of unsound mind, and infants may devise their real estate by a last will and testament duly executed according to the pro- visions of this title." 2 E. S. 57, § 1, Banks's 9th edition, page 1875. As to personal property the provision is, " Every male person of the age of 18 years or upwards and every female of the age of 16 years or upwards of sound mind and memory, and no others, may give and bequeath his or her personal estate by will in writing." 2 R. S. 60, § 21, Banks's 9th edition, page 1876. See as to full discussion of who may take and create estates by will, 1 Thomas on Law of Estates Created by Will, pages 1 to 75 inclusive. In addition to these provisions of the Revised Statutes, section 2611 of the Code must be con- sidered, which provides " what wills are entitled to probate," and is as follows : What wills may be proved ; change of residence not to affect validity. (See ante p. 37.) A will of real or personal property, executed as prescribed by the laws of tiie state, or a will of personal property exe- cuted without the state, and within the United States, the Dominion of Canada, or the Kingdom of Great Britain and Ireland, as prescribed by the laws of the state or country where it is or was executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residence, may be proved as pre- scribed in this article. The right to have a will admitted to probate, the validity of the execution thereof, or the validity CONTESTED PROBATES. 383 or construction of any provision contained therein, is not af- fected by a change of the testator's residence made since the execution of the -will. This section applies only to a will executed by a person dying after April eleven, eighteen hundred and seventy-six, and it does not invalidate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is revoked or altered by a will which those sections rendered valid, or capable of being proved as prescribed in this article. § 3611, Code Civil Proc. Where a will is executed abroad according to the laws of testator's residence, but not according to Nevs^ York law, the will is provable here under section 2611 ; but as its probate owes its force to the laws of the foreign country, so the will can be given no further effect than if proved in that country. Matter of Cruger, 86 Misc. 477. In this case the Surrogate construed the will as inoperative to grant the beneficiaries any greater rights than they could have taken under due probate in the country of domicile. It will be seen by the provision of the Revised Statutes (see also New York Real Property Laws, Laws of 1896, chapter 547, section 3), to wit : "a person other than a minor, idiot, or per- son of unsound mind, seized of or entitled to an estate or in- terest in real property, may transfer such estate or interest, " that the question of the testator's age at the time of making the will may be an important preliminary inquiry, whether it be a will of real or of personal property ; for no minor can de- vise his real estate by will ; and as to the personalty the age limits are expressly designated in the statute. These limita- tions in the statute amount to a legislative intimation, that persons under the ages specified are presumed to be mentally incompetent to dispose of their property by will. Townsend V. Bogart, 5 Eedf. 93, 105. The age of a testator in this con- nection is proved just as it would be in any other case. See Matter of Paige, 62 Barb. 476, as to what is and what is not competent evidence of age. §11. Order of discussion. — The questions arising upon the probate of a will to which objections are interposed will be dis- cussed in the following order : 384 surrogates' courts. 1. Due execution of the document propounded (under which will be discussed all questions arising out of compliance or non- compliance with the statute relating to the execution of wills). 2. Testamentary capacity (for regardless of the mode or regularity of the execution if the decedent making the will had not testamentary capacity, it must be denied probate). 3. Fraud and undue influence (for conceding compliance with the statute as to its execution and testamentary capacity to make, the will may be invalidated by proof of such influence or fraud, under which falls also the knowledge of contents of the will by the testator). DUE EXECUTION. §12. Requirement of the statute.— Section ST. The Ke- vised Statutes (part II, chap. 6, article III., section 40, 9th ed. p. 1877), provide for the proper execution of wills as follows : " Section 40. Every last will and testament of real or per- sonal property, or both, shall be executed and attested in the following manner : " 1. It shall be subscribed by the testator at the end of the will. " 2. Such subscription shall be made by the testator in the presence of each of the attesting witnesses, or shall be acknowl- edged by him to have been made to each of the attesting wit- nesses. " 3. The testator at the time of making such subscription or at the time of acknowledging the same, shall declare the instru- ment so subscribed to be his last will and testament. " 4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will, at the request of the testator." Section 40 prescribes an additional requisite, that the " wit- nesses in any will shall write opposite to their names their respective places of residence, and every person who shall sign the testator's name to any will by his direction shall write his own name as a witness to the will." But, it is expressly pro- vided, the omission to comply with this requisite merely sub- jects the person guilty thereof to a penalty of $50.00 to be recovered by any person interested in the property devised or bequeathed, who shall sue for the same. It shall not affect the validity of the will. Hallenheck v. Yan Yalkenhurg, 5 How. CONTESTED PROBATES. 386 Pr. 281. Dodge v. Cornelius, 168 N. Y. 242, rev'g 40 App. Div. 18, was an action of this character. The consti- tutionality of the act was not passed on, the court finding the defendant had waived that claim (see Ibid. p. 245) al- though O'Brien and Landon, J J., dissented (see pp. 249-254). The three years' statute, on an action for a penalty, was held to run, not from the date of the will, but from the death of testator. § 13. Sabstantial compliance with the prorisions of the statute. — The provisions of the Kevised Statutes prescribing what the necessary formalities are in the due execution of wills, were very carefully discussed by Judge Denio in Hoys- radt v. Kingman, 22 N. Y. 372, in which case the Court of Appeals declared that the restrictions which, from motives of prudence, are thrown around the general right to dispose of one's property by act in writing to take effect at testator's death, should be construed liberally in favor of the testament, and forms should not be required which the legislature has not plainly prescribed. Ibid, at page 379. In other words, sub- stantial compliance with the requirements of the statute is suf- ficient. Oilbert v. Knox, 52 IST. Y. 125, 129 ; Matter of Menge, 13 Misc. 553 ; Matter of Carey, 14 Misc. 486-; Larabee v. Bal- lard, 1 Dem. 496 ; Matter of Application of Beckett, 103 N. Y. 167, 174; Trustees, etc., v. Calhoun, 25 id. 422; Gamble y. Gamble, 39 Barb. 373 ; Coffin v. Coffin, 34 N. Y. 9 ; Nelson v. McGiffert, 3 Barb. Ch. 158 ; Carle v. Underhill, 3 Bradf. 101 ; Seguine v. Seguine, 2 Barb. 385 ; In the Matter of Cottrell, 95 N. Y. 329 ; Lane v. Lane, id. 494 ; Seymour v. Van Wyck, 2 Seld. 120 ; Lyman v. Phillips, 3 Dem. 459, aflBrmed at the Gen- eral Term and in the Court of Appeals. But this rule of sub- stantial compliance does not permit vague, or insufficient proof as to any of the essential requirements provided by law. The proponent of a will, having, as already stated, the affirmative of the issue, must convince the trial court by satisfactory evi- dence that each and every condition required to make a good execution of a will has been complied with. The rule may be stated then to be not only that substantial compliance with the statute is sufficient but also that it is absolutely essential. See Matter of Will of Cottrell, 95 N. Y. 329, 336 ; Matter of Elmer, 88 Hun, 290. § 14. The suhscription by the testator. — The provision of 25 386 STJEEOGATES' COURTS. the statute is that the will shall be subscribed, by the testator, at the end thereof. Before the Kevised Statutes, it was held by the Court of Errors, that by the common law as generally received and understood in England as well as in this country on the 19th of April, 1775, when the common law was by the constitution adopted as part of the law of this State, a will found in an iron chest among valuable papers of a person deceased, with- out signature, having an attestation clause, without witnesses, written by the deceased with his name in the beginning there- of, in a fair hand, engrossed on conveyancing paper with a seal attached thereto, evincing much deliberation and foresight in its provisions, and disposing of real and personal property to a large amount, should be considered a good and valid will of the personal estate therein mentioned. Watts v. Publio Administrator, 4 Wend. 168, reversing 1 Paige's Ch. 347. The decedent in this case had died in 1827, before the enact- ment of the Kevised Statutes, which went into operation on the 1st of January, 1830. Matter of Booth, 127 N. Y. 109. The present rule is distinct and clear that the testator's name must be subscribed at the end of the will. See Uoysradt V. Kinyman, 22 N. Y. 372. The object of the law as to signature at the end of the will is not only to exclude signatures at any other part {Sisters of Charity, etc., v. Kelly, 67 N. Y. 409 ; Hewitt's Will, 91 N. Y. 261 ; 5 Eedf. 271 ; O'NeiVs Will, 91 N. Y. 516 ; Matter of Sanderson, 9 Misc. 574 ; McQuire v. Kerr, 2 Bradf. 244), but also in order to secure the instrument from interpolation or un- authorized addition. The provision is a judicious and wise one. The intention is that the act of authentication must take place at the termination of the testamentary disposition, and the tes- tator and the witnesses must concur in determining that point. Younger v. Duffie, 94 N. Y. 534, 539. The law is no more ful- filled by the testator signing in the middle of the will and the witnesses attestinoj at the end, than the witnesses sisrninar in the middle and the testator at the end. They must both sub- scribe at the end. McOuire v. Kerr, supra. A will may be said, therefore, to be signed at the end thereof where nothing intervenes between the instrument and the subscription. Oil- man's Will, 1 Eedf. 354 ; 38 Barb. 364. Blanks in the body of a properly executed will do not affect its validity. Matter CONTESTED PROBATES. 387 of Murphy, 48 App. Div. 211. Nor is it material that at the moment of executing a will written on three sheets of paper, they were not fastened together. Matter of Snell, 32 Misc. 611 ; In re Fitzgerald, 33 Misc. 325. In a very recent case {Matter of Whitney, 153 N. Y. 259, reversing 90 Hun, 138), the Court of Appeals passed upon this point, stating that it was no longer an open one in that court. The will was in that case drawn upon a printed blank, cover- ing one page, and the testator and subscribing witnesses signed at the foot thereof ; the subdivisions of the will, marked re- spectively " First and " Second," tilled the entire blank space in the printed form, and *at the end of the second subdivision were the words, " see annexed sheet." On a separate slip of paper were written two additional subdivisions marked re- spectively " Third and "Fourth;" this was attached to the face of the will, immediately over the first and second subdivi- sions, by metal staples, so that the slip annexed had to be raised up or turned back in order to read the first two clauses. The court held that the alleged will was not subscribed at the end thereof, observing, " the will must be a complete whole signed by the testator and witnesses at the end thereof." The court, Judge Bartlett writing the opinion, reviewed four cases on this point as follows : "In Matter, etc., of Hewitt, 91 N. Y. 261, the will was writ- ten on two sides of an irregular shaped piece of paper, about one half of it upon one side and the other half upon the other side. " The witnesses signed their names at the bottom of the first side and again at the top of the second side. " The testator signed his name at the end of the disposing portion of the instrument, near the middle of the second side, and again at the bottom of the second side. " It was held that the statute required that both the testator and the witnesses must sign at the end of the will. Judge Earl said : ' Wherever the will ends, there the signatures must be found, and one place cannot be the end for the purpose of subscribing by testator, and another place be the end for the purpose of subscribing by the witnesses.' " This court held that the probate of the instrument was properly denied. " In Matter, etc., of O'Neil, 91 N. Y. 516, the instrument was 388 STTRROGATES' COITRTS. drawn upon a printed blank, the formal commencement being on the first page and the formal termination at the foot of the third page. The blank space was filled on the first, second and third pages and the last or thirteenth clause of the will was partly written on the third page and the balance carried over to the blank fourth page. The names of the testator and the witnesses were subscribed near the bottom of the third page, below the formal termination of the will, and there only. The written matter on the fourth page was not connected with the main body of the will by reference of any kind, although it was obviously a continuation and completion of the thirteenth para- graph of the will. ' " This court held that the will was not subscribed at the end thereof and that parts of the instrument preceding the signature could not be received, as the will was either valid or invalid as a whole. " In Matter of Conway^ 124 N". Y. 455, there was a state of facts quite similar to Matter of 0' Neil, just commented upon, with the exception that at the end of the provisions in the body of the will were the words, ' carried to back of will,' and upon the back of the sheet was the word ' continued.' Following this word were various bequests, and then below them were added the words ' signature on face of the will.' "The Second Division of this court held, with three judges dissenting, that this instrument was not signed by the testator and witnesses at the end thereof, and had been improperly ad- mitted to probate. The dissenting opinion rested mainlj"^ upon the fact that there was a clear and distinct reference in the body of the will to the provisions on the back of the paper, and that they were thereby properly connected with the subject- mtatter preceding the signatures. " This court, very recently, in Matter, etc., of Lewis R. Blair, (reported in 152 N. Y. p. 645), affirmed, without an opinion, the judgment of the General Term, first department, reversing the decree of the Surrogate's Court of the county of New York, admitting the alleged will of Lewis E. Blair to probate. This instrument consisted of eight pages ; the testator signed at the bottom of seventh page and the witnesses signed at the end of a proper witnessing clause at the top of the eighth page. " After the place for the signatures of the witnesses, but be- fore they were actually signed or the will executed, a clause CONTESTED PROBATES. 389 was added directing the executors to sell at private sale a cer- tain piece of real estate, and to devote the proceeds of the sale in liquidating any deficiency in interest or casii bequests under the will. " The will was then executed, as before stated, and the tes- tator signed the added clause, but the witnesses did not. "The Surrogate held that the will was complete without the added clause, and admitted the main body of the instru- ment to probate, excluding the added words. We held that the additional clause was a part of the will, and that it was not signed at the end thereof by testator and witnesses as re- quired by the statute. " The object of the statute is to surround testamentary dis- positions with such safeguards as will protect them from alter- ation and prevent fraud." Matter of Blair, 84 Hun, 581, citing Sisters of Charity v. Kelly, 67 N. Y. 409 ; Matter of Case, 1 N. Y. St. Eep. 152. See also Matter of An- drews, 162 N. Y. 1, where will was executed on reverse side of first page, the second page containing dispositive parts of will. The court held it was not subscribed " at end thereof " and also refused to read the second page into the will as by incorporation. Matter of Donner, 37 Misc. 57. Thus while it has been intimated that the court will not undertake judicially to say, that the subscription should be one eighth, one half, two, or ten inches, from the last line of the instrument, yet the rule embodied in the decisions contemplates that the signature of the testator shall follow so closely after the end of the testamentary instrument as to provide a reason- able safeguard against interpolation of additional provisions. There have been a number of cases where the signature of the testator has been confused with the attestation clause (see Matter of Noon, 31 Misc. 420), and the signature of the wit- nesses ; and yet, where a testator by mistake subscribed be- neath the attestation clause, it was held to be a valid execution. 'Will of Cohen, 1 Tucker, 286. The learned Surrogate observed that as the statute also provided that the attesting witnesses must also sign, " at the end of the will," and as there was no provision in the statute for an attestation clause, that there was a substantial compliance with the provisions of law. " It is customary," he says, " where there is an attestation clause for the testator to sign opposite a seal and just preceding that 390 surrogates' courts. clause and for the witnesses to sign below the clause. In that case they do not all sign in exactly the same place ; yet the propriety of this practice has never, I believe, been called in question." § 15. Same subject. — In this connection it is necessary to note that the attestation clause is not an essential part of the will. Jackson v. Jackson, 39 N. Y. 153, 159, citing Chaffee v. Baptist Missionary Association, 10 Paige, 85 ; Leaycraft v. Simmons, 3 Bradf. 35 ; Jackson v. Christman, 4 Wend. 277 ; Toimger v. Duffi,e, 94 N. Y. 534, 539. Bearing in mind, therefore, that the purpose of the law which requires the subscription to be at the end of the will, is to prevent fraudulent additions to a will before or after its exe- cution, it is manifest that the statute should be so construed as to accomplish this purpose. The testator shall determine what shall form part of the instrument which he intends as his will, that is, as the instrument by which he makes disposition of his property to take effect after his decease. In this connection the Court of Appeals observes ( Younger v. Duffie, supra), " every word contained in the instrument may not relate to or bear upon the disposition of property. It is not uncommon for the tes- tator to recite in the will his religious faith and hopes, and the moral or prudential maxims which have guided his life, and to give directions concerning his body, and to make many decla- rations which have no bearing whatever upon the disposition of his property ; and yet they are all part of the instrument which he intends as his will. Such matters and declarations are usually inserted at the commencement of the will, but they may as well be placed after the disposing parts of the will; and yet if the signature in such case is placed below them, it is at the end of the will, within the meaning of the statute. So, too, ordinarily what is called the attestation clause, when it follows the signature, is no part of the will. Jackson v. Jackson, 39 N. Y. 153. It is not essential to the validity of the will, and as it follows the signature, it cannot be taken as a part thereof. But if the testator chooses to insert the attestation clause before his signature, thus making it a part of the instrument, then like any other matter contained in the will which does not relate to the disposition of the property, it becomes a part of the in- strument called a will. If the testator, beneath the disposing part of the will, and before his signature, should insert the CONTESTED PROBATES. 391 Apostles' creed, or the Lord's pra_yer, it would be a part of the instrument called a will, and although it would intervene between the signature and the disposing part of the will, it could not be contended that the will was not subscribed at its end. It is manifest that this language contemplates a case very different from those where (as in McOuire v. Kerr, 2 Bradf. 2i-i, and In re O'lSTeil, 91 N. Y. 516) portions of the will suc- ceed the signature of the testator, where of course it is prop- erly held that the will is not subscribed at the end thereof. So where an administratrix signed in a blank space in the at- testation clause it was held a valid subscription. Matter of Acker, 5 Dem. 19. But in that case it appeared beyond doubt that it was intended by her to be a subscription to the will and was so understood by the witnesses. So, where a will was written upon an ordinary sheet of legal cap and the will cov- ered the first and third page only, leaving the back of the first page blank and ending at the verj'- bottom of the third page, where the testator signed it, leaving no room for the signature of the witnesses, and the attestation clause was placed upon the opposite blank second page of the instrument so that in appearance the attestation clause was in the middle of the will and upside down, the General Term of the Second Depart- ment, Judge Barnard writing the opinion, held that the will was duly executed, and there was no fraud, that the testator signed at the end of the will ; and that the will was in point of fact attested after its execution by the testator at the end of the will. Hitchcock v. Thompson, 6 Hun, 279. See also Matter of Singer, 19 Misc. 679, citing Matter of Dayger, 47 Hun, 127, and Hitchcock v. Thompson, supra. It is also manifest, from what has been said as to the signa- ture of the testator, and as to the attestation clause forming no part of the will, regarded as a testamentary disposition, that it is immaterial whether the attestation clause is carried entirely across the face of the instrument, as a matter of fact separating the signature of the testator from that of the witnesses. In such a case all signatures may properly be said to be at the end of the will. The attestation clause may be opposite the signa- ture of the testator or below it, the cases are clear on this point. See Matter of Beck, 6 App. Div. 211, Cullen, J., citing MoDon- otigh V. Loughlin, 20 Barb. 238 ; Williamson v. Williamson, 2 392 subrogates' courts. Eedf. 449 ; Woolley v. Woolley, 95 IST. Y. 231. However, where testamentary dispositions are interpolated between the signa- ture and the attestation clause, the signature is invalidated. Matter of Sanderson, 9 Misc. 574. § 16. Same subject — Effect of reference to annexed paper. — (See article in Alban}- Law Jour. June 3, 1899, by Henry W. Hardon.) Cases have not been infrequent where a testator, by reason of carelessness or a desire to economize space or effort, has referred in his will to extraneous papers or memo- randa, either as fixing the names of beneticiaries of particular devises or bequests, or, as fixing the amount or the manner in which the amount of such devises or bequests is to be ascer- tained. It has been held that the power of incorporating the contents of extraneous papers by suitable words of reference in the will itself is undoubted, but that it is subject to certain limitations. First, the paper or papers sought to be incorpo- rated must be shown to have been actually in existence at the time the will was executed. Matter of Rohert, below. Second, it must be capable of identification as the self-same paper which the testator intended to indicate. Thus in GauJfidd v. Sullivan, 85 N. Y. 153, the court held that proof of a codicil referring to a will was sufficient proof of the will. Van Oort- landt V. Kip, 1 Hill, 590. Third, it must not contain any testamentary dispositions of property. See Dyer v. Erving, 2 Dem. 160 ; Matter of Robert, 4 Dem. 185, 192 ; In the Matter oftheWill of 0' Neil, 91 N. Y. 516, 523; Cook v. White, 43 App. Div. 388, 393; Matter of Andrews, id. p. 394, aff'd 162 N. Y. 1 ; Matter of Comuay, 124 ]^. Y. 455 ; Matter of Whitney, 153 N. Y. 259. In Matter of Andrews, supra, the Appellate Division said, at p. 401, "We think that under the law now prevailing in this State, extraneous documents can be referred to only to ascer- tain matters of description, and not for dispository provisions." This incorporation of extraneous papers by reference must not be confused with the republication of a prior instrument either defectively published or revoked. For example, where a co- dicil refers to a prior unattested instrument of the character of a testamentary disposition and the codicil is duly executed, the prior instrument may be so identified by the codicil or sub- sequent will, ^ee Brown v. Olarh, 77 JN". Y. 369, 378 ; Vogel v. Lehritterf, 139 N. Y. 223, 235 ; Caulfield v. Sullivan, supra. COKTESTED PKOBATES. 393 In the Robert case cited above the testator provided that' any moneys or indebtedness which should appear upon any in- ventory or ledger, or a book of accounts kept by him or under his direction, " charged as due to me from any or either of my said children or Kobert Coyege of Constantinople, during my lifetime, and as an outstanding or unsettled account at the time of my decease," should be considered as forming a part of his estate, and that his executors, by discharging such indebt- edness to such children or college, should be deemed to have paid an equivalent amount on account of the share given by the will to such child or college. Surrogate EoUins held that it was competent to consider all such entries as should have been made before the will was executed, and that the legacies should be abated by the amount thereby shown to have been advanced to any of his said children or said college. 4 Dem. 185. The Court of Appeals in construing this same will {Ruh- ert V. Coi'ning, 89 N. Y. 241) held it to be vaHd " within this rule that a testator may direct that the amount of a legacy once completely fixed by the will itself, shall be diminished by events actually occurring as matters of fact hut not by an unattested testamentary writing, disconnected from any actual occur- rence.''^ See dissenting opinion in Conway case, 124 N. Y. 455. So where a will directed trustees to pay to testator's sister a certain income, "excepting those items named and referred to in clause fourth of this will," by which clause the testator di- rected his trustees after the sister's death to distribute certain legacies to sundry institutions and persons named in " three memorandums left with this will for their guidance." After the will had been proved application was made to have these memoranda admitted to probate as a necessary and important part of the testator's will. In the petition it was alleged that these papers were in the handwriting of the testator and were prepared by him, at or before the time when the will itself was executed, with the intent that they should be treated as forming a part thereof. The learned Surrogate (Rollins, Dyer v. Erving, 2 Dem. 160) observing that he had reviewed every reported case bear- ing upon the subject which by diligent search he had been able to discover (at page 168, Ludiam v. Otis, 15 Hun, 410, Brown V. Clark, 77 N. Y. 369, and English and other cases cited at page 169) held : 394 SUKEOGATES' COXJETS. " First. That words of reference in a will will never suffice to incorporate the contents of an extraneous paper, unless it can be clearly shown that, at the time such will was executed, such paper was actually in existence. "Second. That an extraneous paper produced as and for a paper so referred to in a will, and shown to have been in exist- ence when such will was executed, may be adjudged to form part of such will, and be admitted to probate as such, under these circumstances, and no other ; to wit, when by satisfac- tory and conclusive evidence it has been proved to be the self- same paper which the testator by his words of reference de- signed to indicate." He added, " By its recent decision in Matter of G'Neil, 91 N. Y. 523, the Court of Appeals of this State gives distinct intimation of its unwillingness to enlarge, if not, indeed, of its disposition to narrow, the scope and effect of referential words in testamen- tary papers." Consequent!}' the proof identifying the papers referred to must be clear and satisfactory. The mere fact that they were found in the same box, or trunk, or drawer, or even in the same envelope is by no means conclusive. Dyer v. Erving, supra, at page 170 et seq. A decedent left two papers, each in a separate envelope, sealed, both indorsed as purporting to contain her will, the second, however, containing this additional writing by her : " I direct that this should not be opened until after the death of my brother Stewart and my sister Harriet." The paper contained in the first envelope purported to give the pos- session and use of all her estate to such brother and sister, and provided : " From and after the death of the longer lived of my said brother and sister, I give, devise, and bequeath my said estate to persons named on another sheet and enclosed in another envelope which shall not be opened until after the death of my said sister and brother." The first paper was executed in due form and the second one contained a disposing clause between the signature of the tes- tator and the attestation clause, and was held not to be prop- erly executed. It was held that the first paper was valid as a will ; that the second paper was void as a will ; that the second paper was not sufficiently identified as the paper referred to, although corresponding generally to the description in the first. CONTESTED PROBATES. 395 and although both were executed on the same day and were both in the handwriting of the administratrix ; and finally that the reference in the valid will to a paper which could not be identified, did not have the effect of annulling the will. Matter of Sanderson, 9 Misc. 574. A peculiar case arose ( Vogel v. Lehritter, 139 N. Y. 223) where a will was claimed to have been made by the testatrix in GermanJ^ It appeared that the paper offered as a will was signed by the testatrix only but enclosed in an envelope within which it was sealed, and upon which was indorsed an elaborate certificate by a Royal Bavarian notary, to the effect that the envelope contained the last will of the testatrix so declared by her to him and also indorsed by two witnesses who also signed, whereupon the notary made an additional certificate, reciting all the facts as to the publication of the will. The Court of Appeals held in the first place, that the paper contained in the envelope was not subscribed before the witnesses. Second, that the contain- ing envelope and the certificate of the notary could not be re- garded as a will or as any part of a will ; and that, when the signatures were placed upon it, there was a complete absence of any testamentary intent, and that the most that could be said was that, by these alleged formal acts before the notary, the testatrix desired to identify the paper contained in the en- velope which was not in fact properly executed ; and that the papers propounded could not be admitted as a will. A writing inseparably connected with the previous clauses of the will, though named a " schedule," and sought to be in- corporated solely by reference, will be deemed a part of the will where the attestation clause attests' the schedule as sol- emnly as the will itself. Matter of Brand, 68 App. Div. 225, 227. In this case the " schedule " was admitted to probate with the will. lUd, citing Matter of Hunt, 110 N. Y. 278 ; Matter of Beckett, 103 N. Y. 167 ; Matter of Turell, 166 N. Y. 330,^337. The annexation of papers referred to in a will, will not in- validate a proper signature at the end of the will (Tonnele v. Hall, 4 N. Y. 140), where a map of testator's property was an- nexed. Nor will a reference in a will to a paper which is not annexed invalidate it. Thompson v. Quimhy, 2 Bradf. 449. The paper is to be deemed complete as it stands at the time of execution and of attestation. Where, however, after decedent's 396 STJKEOGAtES' COtTETS. signature, a clause is inserted appointing an executor or making any testamentary disposition, tiie signature is not at the end of the will within the meaning of the statute. Matter of Niles, 13 St. Eep. 756 ; Matter of Sanderson, 9 Misc. 574. It has been held that where a paper purporting to be a will contained a clause appointing executors after the signatures of the testator and of the witnesses, the question of validity turns on whether this clause was written in before or after the time of the execution {.Matter of Jaooison, 6 Dem. 298), the theory of course being that if they were written in before execution then they are a part of the will, and the will is not executed at the end thereof, and is therefore invalid. If, how- ever, the words were written in after execution, they cannot affect the validitj^ of the will, as they are mere surplusage and cannot be considered as a part of the vfUI. See Matter of Con- way, 12i N. Y. 455, discussion by Parker, J., as to what is sufficient signing at the end of a will. See also In re Purdy^s Will, 20 jS". Y. Supp. 307. § 17. Place of signature where will is executed without the State. — At common law, if a person wrote his name in the body of a will or contract with intent to execute it in that manner, the signature so written was as valid as though sub- scribed at the end of the instrument. Matter of Booth, 127 N. Y. 109, citing Merritt v. Glason, 12 Johns. 102 ; People V. Murray, 5 Hill, 408 ; Gaton v. Cg,ton, 2 II. L. 127 ; 2 Kent's Com. 511 ; 1 Jarman on Wills, 79. So in the Booth case above cited, the only signature was the words italicized. " If I, Cecilia L. Booth, should die within the year 1884, I leave to my sister, Geraldine Josepliine Timoney, all money due me from my last father's deceased will, als(5 ray wearing apparel and furniture, and I also leave to my little nephew, Albert Philip Timoney, all money deposited in the Emigrant Savings Bank in my maiden name, Cecilia L. Hatfield. " "Witnessed by "Amelia. Kueeus, " Mamie Cltffoed. " June leth, 1884." The Surrogate held that this instrument was well executed under the laws of New Jersey and admitted it to probate. 3 Dem. 414. This was reversed by the General Term and its judgment affirmed by the Court of Appeals. Chief Justice CONTESTED PROBATES. 897 Folletin writing the opinion observed, " We assume that under the laws of New Jersey a will may be legally executed if the name of the testator is written by him in the body of the in- strument with intent to execute it. Nevertheless, as the rec- ord contained no evidence tending to show that the testatrix, directly or indirectly, by word or gesture, referred to her name in the first line of this paper as her signature," her simple declaration, " This is my will ; take it and sign it," is insuflB- cient to sustain a finding or verdict that her name was written with intent that it should have effect as her signature in the final execution of the will. The court said, that where siff- natures are subscribed at the end of the wiU in the usual way in which instruments are finally authenticated, there is a legal presumption that the signatures were written for the purpose of finally executing the documents, but that no presumption arises when the name of the testator appears elsewhere in the body of the instrument alleged to be authenticated thereby. § 18. Manner of signature.— The signature of a testator may be made in any one of four ways. 1. He may subscribe his name personally. 2. A third person may subscribe it for him at his request. 3. Such third person may guide the testator's hand in writ- ing. 4. The testator may make his mark. § 19. Signature by testator personally. — When the signa- ture purports to be that of the testator, the inquiry is addressed to the genuineness of the signature. The object of having the subscribing witnesses is that the}'^ may testify as to the fact of signature, or as to an acknowledgment by the decedent that he did in fact sign ; therefore the legibility of the signature is not necessarily a test of its genuineness. Where a signature is indistinct or imperfect or illegible, but the witnesses testify that it was in fact made by the testator in their presence or acknowl- edged by him to them to have been made, the court will deem is to be the testator's mark {Hartwell v. McMaster, 4 Redf. 389), which as will be seen below has repeatedly been held to be a substantial compliance with the statute. Where the sig- nature of the testator is disputed or where the subscribing wit- nesses are dead, the genuineness of the signature must be proved. See Matter of Eesdra, 119 N. Y. 615, afl'g 17 N. Y. St. Eep. 612. 398 surrogates' cotjrts. §20. Signature by other than testator. — The Court of Appeals has held in regard to the acts which the statute requires of a testator in the execution of his will, that it is not absolutely essential that he should perform them himself, provided they are done by a third person in his presence and he assents thereto and adopts the same. Gilbert v. Knox, 52 N. Y. 125, 130. This has chiefly been held with regard to declarations by the draughtsman or some one else present, that the paper is the testator's will, or where such third person requests the witnesses to sign or asks the decedent whether he desires them to sign. This same rule that the act of the third person may be adopted has been applied to the signature ; namely, that it is competent for a third person to sign the will for the testator and in his name ; only, in such cases the courts will require conclusive proof that this was done at the testator's express desire and also that he was himself unable to append his signature thereto in person. Merchant's Will, 1 Tucker, 151 ; Rohhins v. Coriell, 2Y Barb. 656. In the first of the cases last cited there was a dispute upon the probate of the will as to whether the name of the testator was in his handwriting ; it was proved however that at the time the subscribing witnesses signed, the testator drew a paper out of his pocket, and that his name appeared already signed at the end of the will, and the subscribing witnesses thereupon duly signed their names as such ; there was also proof that the test£^tor acknowledged the signature before the wit- nesses. It was held first that convincing proof of such acknowl- edgment would amount to an adoption of the signature whether in fact made by the testator or not. Second, that there was not sufficient proof of the forgery alleged in respect of such signa- ture. "Where, however, the name is written by another than the testator at his request, the usual acknowledgment that the paper is the will of the testator which is sufficient where the subscription is made in the presence of the witnesses is not sufficient. The testator must expressly adopt the signature. So Chancellor "Walworth held {Chaffee v. Baptist Missionary Convention, 10 Paige, 85, 92), that there must be either, " the actual subscription in the presence of the witnesses or an acknowledgment to each of them that the testator had previ- ously subscribed or had directed some other person to sign it with the testator's name which appeared thereon." The Court of Appeals {Matter of Will of Phillips, 98 N. Y. CONTESTED PllOBATES. 899 267, 273), Eapallo, J., said in a case where the signature was not made in the presence of the witnesses, the exhibition of the will and of the testator's signature attached thereto and his declaration to the witness that it was his last will and testa- ment and his request to the witness to attest the same, were a sufficient acknowledgment of the signature ; hut the acknowl- edgment of the signature must in every case include the same identification of the written words as necessarily exists when the witnesses see the testator write. Mitchell v. Mitchell, 16 Hun, 97, 98, affirmed in 77 JST. Y. 596. Under the Kevised Statutes (2 R. S. chapter 6, title 1, art. 3, section 33), it was provided that any person who should sign the testator's name to any will b}' his direction, should write his own name as a witness to the will, under a pecuniary pen- alty of $50.00 in case of omission. Such omission however neither disqualified the person from testifying respecting the execution of the \vill nor did it aflfect the validity thereof. This provision was repealed by Laws of 1880, chapter 245, but it was inserted in section 41, and is still in force. See as to signing through another, Butler v. Benson, 1 Barb. 526 ; Campbell v. Logan, 2 Bradf. 90 ; Hollenbech v. Van Valkenhurgh, 5 Plow. 281. § 21. Guiding testator's hand. — In the third place the tes- tator's hand may be guided by a third person in cases of ill- ness, or weakness, or illiteracy and a subscription so made is valid. Campbell v. Logan, 2 Bradf. 90. See also Van Hans- wyck v. Weise, 44 Barb. 494; Simpson's Will, 2 Redf. 29. The reason for requiring conclusive proof of an express desire on the part of a testator that another should sign his name for him to the will or should guide his hand in making his own subscription is that in the case of persons who are so ill, or otherwise disabled as to be unable to write, as well as in cases of illiteracy, there is no presumption that the testator knew what he was doing; but the knowledge of the contents of the will and the character of the paper have to be proved. The contestant may well urge that there was undue influence in persuading the ill, disabled, illiterate testator in performing the act of signature. See Rollwagen v. Rollwagen, 3 Hun, 121. The material inquiry is whether the aid rendered was assist- ance or conl/rol. Matter of Kearney, 69 App. Div. 481, 483. So, if, against the wish of the alleged testator at the time, or 400 StJKRO&ATES' eOUBTS. without his consciousness as to the purpose, another writes the name with a pen which is merely in physical contact with the hand of the alleged testator, then the signature is not, in legal intent, made by the latter. Ihid., citing Butler v. Benson^ 1 Barb. 526 ; Campbell v. Logan, 2 Bradf. 90, 97. § 22. Signature by testator's mark. — It has been observed that legibility of the signature is unimportant. So if the sig- nature is indistinct, if all the letters necessary to the proper spelling of the name cannot be made out, the court may treat the signature as the testator's mark, and signature by mark has long been upheld as valid. See Jackson v. Jackson, 39 N. Y. 153. In the first place signature by mark must not be confused with signature of the testator's name by a third party at his direction ; nor is the writing of the testator's name around or on either side of, or above, or under the mark made by the tes- tator to be deemed, "signing the testator's name by his direc- tion;" the two are wholly distinct ; the testator may subscribe the will by his full name or by his mark, and if he does so that is the subscription required by the statute and would be effect- ive as such even though no one made the written memoran- dum thereof around such mark. Such memorandum is useful and important not only as a guide to the memory of witnesses and a contemporaneous declaration of the purpose of the mark and that it was made by the testator, but as a protectioti against fraud ; but it is not the essence of the execution. Where it is necessary to prove the execution of an instrument, " by a marksman," the proof consists of evidence of the making of the mark ; the writing of the name around it is no essential part of the execution. Jackson v. Jackson, supra, at page 160, citing Butler v. Benson, 1 Barb. 526 ; Chaffee v. Baptist Missionary Convention, 10 Paige, 91. So where one of the witnesses was dead and the other when examined testified that he did not see the mark made, probate was necessarily denied. Porter's Will, 22 N. Y. Supp. 1062. But in case where one of the witnesses is dead and the surviving witness testifies clearly and conclusively as to the making of the mark by testator it has been held to be sufficient proof without con- firmatory evidence by other witnesses. Hylands's Will, 27 N. Y. Supp. 961, discussing Matter of Walsh, 1 Tucker, 132, criticised in Simpson's Will, 2 Redf. 29 ; Reynolds's Will, 4 CONTESTED PROBATES. 401 Dem. 68 ; Worden v. Van Gieson, 6 Dem. 237 ; Matter of Dockstader, 6 Dem. 106 ; Matter of Pheljps, 5 jS". Y. Supp. 270. As a cross mark has no such cast or form as to distinguish it from a like mark made by any other individual, it cannot of course be the subject of expert testimony ; so unless the wit- nesses actually saw the mark made, or other witnesses are pro- curable to testify in this regard, probate must be refused. In the Hyland case Surrogate Eansom summed up his ex- amination of the adjudicated cases in these words : " While it is desirable to have the testimony of both wit- nesses to prove the making of a mark by a testator, yet when one cannot be produced and no other person was present, the testimony of the other if his character is not impeached, sup- ported by the apparent good faith of the transaction and a full attestation clause, I hold to be sufficient." 27 N. Y. Supp. 961, 965. The effect of the attestation clause will be discussed directly, but it may be here observed, that while the decision in the Hyland case referred to the existence of an attestation clause it did not really turn upon that fact. The point decided and we think propei'Iy decided was, that if the testimony as to the making of the mark is clear and uncontradicted the will may be admitted upon the testimony of one credible and disinterested witness, it being impossible to produce and examine the other. See also Matter of Wilson, 76 Hun, 1, citing Matter of Kane, 20 N. Y. Supp. 123, and Matter of Hyland, supra. Neither a will of real nor of personal property requires a seal and if it has a seal that fact does not permit the court to attach any greater solem- nity to the insti'ument or to dispense with any of the statutory requirements in ascertaining whetherit was duly executed. See Will of Diez, 50 N. Y. 88. An imperfect signature cannot be deemed the testator's mark where the proof shows that it was af- ter all an un com pleted signature due to the illness, or death of the decedent preventing his completion thereof at the time of the al- leged execution. Thus, where the testimony proved that the decedent Patrick J. O'Neil started to sign his name but that when he had finished the letter " t " the pen dropped from his hand and he said that he could not go any further, whereupon a third person present took up the pen, made a cross mark, and finished the signature ; but there was no proof that his act in 26 402 SUEKOGATES' COtTKTS. SO doing was either at the request or with the knowledge and approbation of the testator, Surrogate Eollins held that there was not a sufficient execution. Kiiapp v. Beilley, 3 Dem. 427. See also Matter of Van Geisen, 47 Hun, 5. The misspelling of the name of a testator subscribed to a will raises no presumption of forgery and if the subscribing witnesses swear tlie signature was in fact made in theif presence and the other formalities were duly observed, the will must be admitted. Matter of Wil- liams, 40 K Y. St. Eep. 356. § 23. The second statutory requirement. — The second sub- topic in this discussion falls under the provision of the statute, supra, to wit : " Such subscription shall be made by the testator in the presence of each of the attesting witnesses or shall be acknowl- edged by him to have been so made to each of the attesting witnesses." See Matter of Purdy, 46 App. Div. 33. The dis- cussion of this provision of the statute is closely related to tlie foregoing. This provision contemplates that all the subscribing witnesses may be able to testify, that the testator signed in their presence, or they shall severally be able to testify that the testator acknowledged to each that his subscription had been made by him. This provision may be paraphrased by saying, the subscription may be made by the testator either in the presence of each of the witnesses, which means in the pres- ence of both, or it shall be acknowledged by him to each of them as having been theretofore made. Accordingly it has been held that he may make it in the presence of either and acknowledge to the other or that he may make it in the pres- ence of neither and acknowledge it to each. Signature in the presence of the witnesses even though they do not see the mark made by the pen in the testator's hand has been held to be sufficient. Thus, in Matter of Van Houten, 15 Misc. 196, it appeared that the signature of the testator upon an alleged codicil appeared in the form of a cross mark between the Christian and surname. Both the subscribing witnesses were present. The testator's counsel who prepared the will, read the will to the testator and then held the pen and wrote the testator's name, the testator holding the pen- holder while he wrote. The witness testified that he did not see what mark the pen made and could not swear whether the signature or the cross mark was made when the testator had CONTESTED PROBATES. 403 his hand on the pen. The other witness testified substantially to the same effect and added that he heard a scratching noise made by the pen. Surrogate Tompkins held from this testi- mony that the codicil was signed in their presence by the tes- tator and should be probated. In Matter of Beneventano, 38 Misc. 272, Church, Surr., held a will unexecuted where it appeared that decedent did nob sign it, but merely made a check mark opposite a state- ment at the end of the alleged will, written by the draughtsraiui, " The present will is not subscribed by the testator because he has stated he is illiterate." The Court of Appeals in a very recent case {Matter vf Laudy, 148 K Y. 403, 407, modifying S. C, 78 Hun, 479 ; xS. C, later, 161 N. Y. 429), reiterated the rule formerly de- clared (^Matter of the Probate of the Last Will and Testament of James Mackay, Deceased, 110 N. Y. 611) that, "subscrib- ing witnesses to a will are required for the purpose of attest- ing and identifying it," {Lewis v. Lewis, 11 N. Y. 220 ; Mitch- ell V. Mitchell, 77 IST. Y. 596, aff'g 16 Hun, 97 ; Matter of Nevins, 4 Misc. 22 ; Baskin v. Baskin, 36 N. Y. 416 ; Chaffee V. Baptist Missionary Society, 10 Paige, 85) and in order to do this it is essential, {a) that they should see the testator sub- scribe his name, or {b) that with the signature visible to them he should acknowledge it to be his. In Matter of Clute, 37 Misc. 586, the court observed : A subscribing witness is one who was present at the time when the instrument was executed, and who at that time subscribed his name to it as a witness of the execution. Henry v. Bishop, 2 Wend. 575. Although the witness was present at the execu- tion, if he did not subscribe the instrument at that time, but did it afterwards without request of the parties, he is not a good attesting witness. Hollenback v. Fleming, 6 Hill, 303. Welch V. St. Patrick Church, 63 N. Y. St. Kep. 235 ; 81 Hun, 372 ; Pritchard v. Palmer, 68 iST. Y. St. Eep. 588 ; 88 Hun, 416. A notary who subscribed the notarial certificate of acknowl- edgment is not a subscribing witness. Mutual Life Ins. Co. V. °Corey, 27 N. Y. St. Kep. 608, rev'd 48 id. 247, but not on above point. In Leivis v. Lewis, supra, it appeared that the paper was so folded that the witnesses did not see any subscription. The 404 StTEEOGATES' COUETS. court held the will not properly executed, and said : " If the party does not subscribe in their (the witnesses') presence, then the signature must be shown to them, and identified, and rec- ognized by the party, and in some apt and proper manner designated by him as his signature. The statute is explicit and will not be satisfied with anything short of a substantial compliance with its terms." In Matter of Maolcay, supra, it appeared that the paper was so folded that the witnesses could see no part of the writing except the attestation clause, and they did not see either testator's signature or his seal. For this reason the will was held not to have been properly executed. This language of the courts has been held to mean that the signature of the testator must be so far visible to the witnesses as that they can see and know that the name purporting to be subscribed is the very name of the testator, otherwise the}' can- not identify it as that of the testator as required by the rule laid down in Matter of Laudy, 148 IST. Y. 403. If the will is so far sealed or covered up by the testator that the witnesses can merely see some writing where the signature is claimed to have been, then the signature cannot be fairly said to be visible to the witnesses in such a sense as to constitute a compliance with the statute and the construction given to its language by the courts. Matter of Laudy, 14 App. Div. 160, opinion of Williams, J., at page 164. See also Matter of De Haas, 9 App. Div. 561, and same case on appeal after the jury trial (reported in 19 App. Div. 266) had been had. If the signature is in plain sight, a request that the witnesses signed the paper pub- lished and declared as a will is a sufficient acknowledgment of the signature. Matter of Phillips, 98 N. Y. 267 ; Matter of Lang, 9 Misc. 521 ; Matter of Stoohioell, 17 Misc. 108. Eut where a will was shown not to have been signed in the wit- nesses' presence, and neither witness saw the signature, probate was refused, although one witness testified to an acknowledg- ment by the testatrix. Matter of Aberororribie, 24 App. Div. 407, 408. The Appellate Division says : " It is the subscription, and not the instrument, which the statute requires to be ac- knowledged ; and a signature which is neither seen nor identi- fied can in no proper sense be said to have been acknowledged by the mere statement that it had been affixed to a paper which was characterized as a will." Id., citing Chaffee v. Baptist. CONTESTED PROBATES. 405 Miss. Convention, 10 Paige, 85 ; Lewis v. Lewis, 11 N. Y. 220 ; Mitchell V. Mitchell, 16 Hun, 97, aff'd 77 N. Y. 596 ; Matter ofMackay, 110 N. Y. 611 ; Matter of Laudy, 148 N. Y, 403 ; Matter of Whitney, 153 N. Y. 259. § 24. Same subject. — The testator's signature must have been made before the witnesses signed. This rule was estab- lished by the case of Jackson v. Jackson, 39 IST. Y». 153, 161. It has been uniformly followed by the subsequent decisions ; so where the testator after the witnesses had signed added an attestation clause in his own handwriting, beginning with the words, " subscribed by John Kelly, the testator named in the foregoing will," the Court of Appeals held that the will was not properly executed and probate should be denied. Sisters of Charity v. Kelly, 67 N. Y. 409, 413. This case has been cited as holding that the testator may sign after witnesses if he sub- sequently acknowledges his signature. An examination of the first three paragraphs negatives this. See cases discussed in opinion of Folger, J. See also Matter of Blair, 16 N. Y. Supp. 875. The acknowledgment by the testatrix in the presence of the witnesses of the making of a signature amounts to nothing if as a matter of fact there was no signature at the end of the will as required by statute. Matter of Booth, 127 F. Y. 109, 115. The same rule applies where the name of the testator written in at some place other than at the end of the will is not shown to have been written with intent to execute the will. § 25. Publication. — The testator at the time of making such subscription or at the time of acknowledging the same, shall declare the instrument so subscribed to be his last will and testament. The object of this provision of the statute is obvi- ous ; it is that the will shall be declared to be the testator's last will and testament, and that it shall be so declared to the sub- scribing witnesses and that such declaration shall be made at the time of executing the will. While the recitals in an attestation clause may have a strong corroborative effect in supplying deficiencies in proof in certain cases, the absence of recitals in the attestation clause as to the occurrence of one of the essential acts making up a due execu- tion is by no means conclusive. Thus, publication of the will may be proved wholly regardless of the contents of such attes- tation clause. The omission to recite at the end of the will any 406 SURROGATES COURTS. or all of the prescribed forms affects neither the validity of the instrument nor the proof thereof. Leayoraft v. Simmons, 3 Bradf. 35, 37. A will offered for probate must be the will of the testator, and of no one else, and when a testator is ignorant of the con- tents of the paper propounded, it cannot be said to be his will. Proponents are bound to show affirmatively as a condition of probate, that the testator had an intelligent knowledge of the contents of the will. Matter of De Castro, 32 Misc. 193, cit- ing Barry v. Boyle, 1 T. & C. 422 ; Townsend v. Bogart, 5 Redf . 93 ; Hyatt v. Lunnin, 1 Dem. 14 ; Cooper v. Benedict, 3 id. 136 ; Heath v. Cole, 15 Hun, 100 ; Jones v. Jones, 42 id. 563 ; Matter of Green, 67 id. 527. See also Rollwagen v. Rollwagen, 63 N. Y. 504. The testamentary character of the instrument must have been unequivocally communicated by testator to witnesses. Matter of Delprat, 27 Misc. 355, citing Lewis v. Lewis, 11 N. Y. 220 ; Ex parte Beers, 2 Bradf. 163. See also Matter of Bale, 56 Hun, 169 aff'd, 134 N". Y. 614. Matter of Turrell, 28 Misc. 106, 108. "When a will was read over to testator wlio said " It was all right " held, together with full attestation clause sufficient evidence of publication. Matter of Buel,'^^ App. Div. 4, 5. The rule requiring substantial compliance with the statute permits, however, any communication by the testator to the witnesses, at the time of signing or acknowledging, indicating that the testator intended to give effect to the paper so signed and attested as his will. Bemsen v. Brinckerlioff, 26 Wendell, 325, 332. Judge Nelson observed in the case just cited, " Any communication of this idea or to this effect will meet the object of the statute." Coffin v. Coffin, 23 E". Y. 1. It has never been supposed that a particular or in fact any form of words was necessary to effect it. Lane v. Lane, 95 IsT. Y. 494, 498, citing Rernsen v. B rinckerhoff, supra. In the Lane case, Judge Danforth adopted the language of the Court of Errors defining the word "declare" as signifying, " to make known, to assert to others, to show forth," and this in any manner, either "'by word or by act, in writing or by signs ; " in fine " that to declare to a witness that the instru- ment described was the testator's will, must mean to make it at the time distinctly known to him by some assertion, or by CONTESTED PROBATES. 407 clear assent in words or signs." La-ne v. Lam, supra, 498, 499, citing Coffin v. Coffin, 23 N. Y. 1 ; Trustees of Auhurn Seminary v. Calhoun, 25 N. Y. 422 ; Gilbert v. Knox, 52 N. Y. 125 ; Thompson v. Stevens, 62 N. Y. 634 ; Hugg v. Eugg, 83 N. Y. 592 ; Back v. Back, 84 N. Y. 663 ; In re Pepoon, 91 N. Y. 255. The necessary publication may be proved by circumstances as well as words {Lewis v. Lewis, 11 JST. Y. 220), and inferred from the conduct and acts of the testator and those of the at- testing witnesses in his presence {Lane v. Lane, supra), as well as established by their direct and positive evidence. Any act of a testator in the presence of the witnesses at the time of the execution of the will that tends to show that he desired to publish the paper as his will, and that he wishes the witnesses to execute it, may be considered. Matter of Harden- hurg, 85 Hun, 580, 587, citing Lane v. Lane, supra ; Reeve v. Crosby, 3 Eedf. 74 ; hi the Matter of the Revocation of the Pro- hate of the Last Will and Testwment of Ann Yoorhis, Deceased, 125 ¥. Y. 765 ; Darling v. Arthur, 22 Hun, 84 ; Matter of Cot- trell, 95 N. Y. 329 ; Matter of the Will of Bernsee, 141 N. Y. 389 ; Matter of Hunt, 110 N. Y. 278. So it is held that a man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing ; and a deaf and dumb man may make a wiR if only the formalities prescribed by the statute are observed in their spirit and intent in such manner as is practicable under the condition existing. In re Peregd's Will, 65 Hun, 478. So where a testator makes his will during an illness and his only declaration is in the form of a sign of assent, when asked by the draughtsman or by any person present, if he declares the will to be his last will and testament and desires the witnesses to sign it as such, it will be held sufficient ; but such assent in such case must be clearly proved. Heath v. Cole, 15 Hun, 100 ; Matter of Mc Or aw, 9 App. Div. 372, 381. So where the witnesses are present as the will is being drawn up and are told by the draughts- man that he is writing the testator's will and that they had been sent for as witnesses, and upon the completion of the will the testator takes and reads it and signs it, and then passes it over to the witnesses for their signatures, the circumstances are sufficient to constitute a declaration within the meaning of the statute. See Lane v. Lane, 95 N. Y. 494, 500. ■i08 SUREOGATES' COITETS. § 26. Meaning of the words, "at the time of."— The in- tent of the statute is that the publication should be made at the time of execution. Ex parte Collins, 5 Eedf . 20 ; Matter of Phillips, me this day of 190 J Assistant to the Surrogate, New York County. If there has been an infant represented by special guardian the special guardian should file a report substantially as fol- lows: Surrogate's Court, AVestchester County. In the Matter of Proving a" Paper Writing Purporting to be the Last Will and Testa- ment of Deceased. ^ I, Attorney and Counsellor at Law, ADMITTING THE WILL TO PROBATE. 189 heretofore appointed the special guardian of the Infant for the purpose of appearing for herein and protecting rights and interests, in this proceeding do hereby report that the interests of said infant are that I have examined the said paper writing dated purporting to be the Last Will and Testament of said deceased, the petition for probate thereof, citation and proof of service, depositions of the subscribing witnesses to said Last Will and Testament, all other papers in this proceeding, and have examined the wit- nesses produced by the proponent; I further report that there is no valid objection to the pro- bate of said paper writing on the part of said infant, or any of them. (Dated.) Special Guardian. "When the depositions have been made and filed, and the special guardian if any has made his report stating that there are no objections to the probate of the will, the papers are marked for decree, and a decree granting probate is handed down by the Surrogate substantially in the following form : Surrogate's Court Caption. Present : Decree grant- Hon. ting probate. Surrogate. In the Matter of the Probate^ of the Last WiU and Testa- ment of late of Deceased. Satisfactory proof having been made of the due service of the citation herein upon, or of the due appearance herein by, aU persons entitled to notice of this proceeding and, Esq., special Guardian for an infant 14 years of age having appeared in person And the witnesses to said last Will and Testa- ment having been sworn and examined. 490 subrogates' coukts. their examination reduced to writing and filed, and it appearing by such proofs that the said "Will was duly executed, and that the Testat at the time of executing it, was in all respects competent to make a wiU, and not under re- straint; and this Court being satisfied of the genuineness of the will, and the validity of its execution ; and the probate thereof not having been contested, It is Ordered, Adjudged and Decreed, that the instrument offered for probate herein be, and the same hereby is, admitted to probate as the last Will and Testament of the said deceased, valid to pass Real and Personal prop- erty, and that the said WiU, with the proofs thereof, and this Decree be recorded, and that Letters Testamentary be issued to the Exeeut who may qualify thereunder, and that said Ex- eeut pay to Esq., special Guardian, the sum of dollars as and for his costs and allowance herein. Surrogate. § 3. Admitting will after contest. — The following prece- dent for a decree admitting to probate a will to which objec- tions have been filed indicates the various matters to be covered by the decree, the form being readily adaptable by omission or amplification to meet any ordinary cases. Surrogate's Court Caption. Present : Hon. Surrogate. In the Matter of Proving the ^ Decree grant- Last WiU and 'I'estament ing: probate after of Deceased, contest. as a Will of Real and Per- sonal Property. Satisfactory proof having been made of the due service of the citations heretofore issued in this matter, requiring aU persons entitled to no- tice of this proceeding to be and appear before ADMITTING THE WILL TO PROBATE. 491 one of the Surrogates of the county of New York to attend the probate of the last will and testament of late of deceased, bearing date the day of 18 and (here recite all the appearances, as for example, and one of the executors named in said will, the petitioner herein, having appeared, in person or by attorney as the case may be, in support of said probate ; and [add other parties appearing and contesting] and infants over (or under) the age of 14 years having appeared by a guar- dian ad litem duly appointed by the Surrogate and filed an answer in opposition to said probate ; and a person named as executor in an- other paper purporting to be the last will and testament of the above named decedent having appeared herein by his attorney in pur- suance of an order of this court duly made upon his petition permitting him to intervene as a party upon this proceeding, and no other person having appeared herein) ; And witnesses having been examined and proofs taken (by and on behalf) of the propo- nent and the contestants touching the facts and circumstances attending the execution of said will, and the competency of the testator to make the same, and his freedom from restraint, and the Surrogate having heard such proofs and the allegations of the respective parties, and due deliberation having been thereupon had, it is Ordered, Adjudged and Decreed — I. That the instrument in writing bearing date the day of 18 propounded as and for the last will and testament of the said deceased, in this proceeding, is the last will and testament of the said deceased, and was duly executed as required by law. That the said the testator at the time of executing it was, in all respects, competent to make such will and not under restraint. n. (If the validity, construction or effect of any disposition of personal property contained in the will was put in issue before the Surrogate 492 SURROGATES COURTS. Note. No such disposition can be put in issue under section 2624, ex- cepting (a) It be of per- sonal property. (6) The will be of a resident of the State. (c)Tbe will was executed within the State. add here the determination of the Surrogate a8 to the true construction and legal effect of the clause reciting it.) Note. in. And it is further Ordered, Adjudged and Decreed, that the said instrument offered for probate herein be, and the same hereby is ad- mitted to probate as the last wiU and testament of the said deceased, valid to pass (real, 07' personal, or real and personal) property ; and that the said will with the proofs thereof, to- gether with this decree, be recorded; and that letters testamentary issue to the executor (s) named in said wiU, who may qualify thereunder. IV. (It is proper to add a further direction dismissing as unproven and unsustained the ob- jections, if any, that may have been filed and not substantially disposed of by the determina- tions as to testamentary capacity and undue in- fluence.) V. (Here incorporate directions as to the pay- ment of costs to the proponent and to special guardians, and whatever provision for taxable disbursements that may be necessary, specifying whether the costs are to be paid out of the estate or to be imposed upon the contestartts person- ally. (Signature.) Surrogate. Where the Surrogate however refuses probate it is proper to follow the foregoing form substantially as far as paragraph I only, at which point the determination of the Surrogate as to the particular ground for the revocation of the will, should be incorporated. For example, if due execution has been proven but the exercise of undue influence established, the decrefc^ay read: It is Ordered, Adjudged and Decreed, that the paper writing purporting, to be, and offered for probate as, the last wiU and testament of deceased, is not the last will and testa- ment of the said deceased, the execution thereof by said having been procured ADMITTING THE WILL TO PROBATE. 493 while he was under restraint and undue influence upon Mm exercised by and it is Further Ordered, Adjudged and Decreed, that the said instrument offered for probate herein be and the same hereby is, denied probate as the last will and testament of the said de- ceased, and (here add a further clause granting costs to the successful contestants and providing for taxable disbursements out of the estate) . § i. The Surrogate's certificate of probate.— After the de- cree admitting the will to probate has beeu made, the Surrogate must make a certificate under section 2629 of the Code, which is as follows : The surrogate must cause to be indorsed upon, or an- nexed to, the original wiU admitted to probate, or the exem- plified copy, or statement of the tenor of a will, which was admitted without production of an original written wUl, a certificate, under his hand, or the hand of the clerk of his court, and his seal of ofHce, stating that it has, upon due proof, been admitted to probate, as a will vaUd to pass real or personal property, or both, as the case may be. The wUl, or the copy or statement, so authenticated, the record thereof, or an exemplified copy of the record, may be read in evidence, as proof pf the original will, or of the contents or tenor thereof, without further evidence, and with the effect specified in the last three sections. § 3639, Code Civil Proc. The certificate should read substantially as follows : Surrogate's Court, Kings County- Certificate of In the Matter of the Probate \ probate. of the last Will and Testa- ! ment of ^ Deceased. J State of New York [ ^^ County of Kings, \ Be it remembered. That, in pursuance of sec- tion 2692 of the Code of Civil Procedure, I hereby certify that on the day of the date hereof, the last Will and Testament of {-} 494 .surrogates' courts. deceased, being the annexed written instrument, was upon due proof duly admitted to probate by the Surrogate's Court of the County of" Zings and by the Surrogate of said County, as and for the last Will and Testament of said deceased, and as a Will valid to pass Real and Personal Property. Said Last Will and Testament and proofs are recorded in the office of said Surrogate, in Liber of Wills, page In Testimony Whereof, I have here- unto subscribed my name and affixed the Seal of Office of the Surrogate of said County, this day of one thousand eight hundred and ninety- Clerk of the Surrogate's Court. § 5. Decree where will is not produced having been lost or destroyed.— Where probate is sought of a lost or destroyed will under sections 2621 and 1865, it will be recalled that due execution and the existence of the will at the time of the tes- tator's death, or its fraudulent destruction in his lifetime must be clearly proven ; and the provisions of the will must be es- tablished in the way prescribed by the Code. The decree admitting such a will or establishing such a will, should contain similar formal recitals as to the citation and its due service as the foregoing decree and, after reciting further the appearances in the proceeding, may proceed as follows : and the Surrogate having inquii-ed par- ticularly into all the facts and circumstances ; and witnesses having been examined and proofs taken on behalf of the several parties hereto ; and due deliberation having been thereupon had, whereby it appears, to the satisfaction of the Surrogate, that the said deceased, did, on or about the day of duly execute a last wiU and testament in the manner required by law ; and that the said will was in existence at the time of the said testator's death (or was fraudulently destroyed in his lifetime) and that ADMITTING THE WILL TO PBOBATB. 495 Note. That un- dei' section 1865 a correct copy or draft is made equivalent to one witness ; if such a draft has been made use of, it may be specified in the decree al- though it is not absolutely essen- tial that, this be done. it lias been lost ; and it further appearing to the satisfaction of the Surrogate that the provisions of said will so lost as aforesaid have been clearly and distinctly proved by at least two credible witnesses; {Note) Now, on motion of the counsel for the petitioner herein, it is Ordered, Adjudged and Decreed, that late of deceased, did on the day of 18 make and execute in the manner prescribed by law, his last will and testament containing substantially the following provisions : {here embody the provisions in the tvords in which they have been proven by the witnesses ; or where there is a draft proven to have been embodied in the will, incorporate the same verbatim) ; and it is further Ordered, Adjudged and Decreed, that the said last will, containing the aforesaid provisions be and the same hereby is admitted to probate as the last will and testament of the said deceased, valid to pass real and personal prop- erty ; and that the said wiU containing the said provisions with the proofs thereof, together with this decree, be recorded, and that letters testa- mentary issue to the executors (who are proved to have been named therein ; or where the wit- nesses have been unable to prove any executor named in the wiU provide for letters of adminis- tration with the will annexed) who may qualify thereunder. (Add the necessary provisions as to costs.) (Signature.) Surrogate. § 6. Prompt entry of decree.— The danger of not promptly entering a decree admitting a will to probate, is, that the time is thereby set running within which an adverse title might be started by an heir conveying to a purchaser in good faith, and for a valuable consideration, property otherwise disposed of by the will. The danger is a remote one, but the statute provides for a validation of such a hona fide purchaser's title in case the will is not admitted to probate within the 496 STJKROGATES' COTTETS. time thereby limited, which is four years ; the section is as follows : When purchaser from heir protected notwithstanding a de- vise. The title of a purchaser in good faith and for a valuable consideration, from the heir of a person who died seized of real property, shall not be affected by a devise of the prop- erty made by the latter, unless within four years after the testator's death, the will devising the same is either admitted to probate and recorded, as a will of real property, in the ofHce of the surrogate having jurisdiction, or established by the final judgment of a court of competent jurisdiction of the state, in an action brought for that purpose. But if, at the time of the testator's death, the devisee is either within the age of twenty-one years, or insane, or imprisoned on a criminal charge, or in execution upon conviction of a crim- inal offense, for a term less than for life ; or without the state, or, if the will was concealed by one or more of the heirs of the testator, the limitation created by this section does not begin until after the expiration of one year from the removal of such a disability, or the delivery of the will to the devisee or his representative, or to the proper surro- gate. § 3638, Code Civil Proc. The words " if at the time of the testator's death, the de- visee is ... . within the age of twent\^-one years," have been held not to refer to. unborn children. Fox v. Fee, 167 N. Y. 44, 46. And the concealment of the will by heirs of the tes- tator is such concealment as leaves the devisees ignorant of their rights under the will, and deprives them of knowledge of its existence. Ibid., and Cole v. Gourlay,12 N. Y. 527, 533. The Surrogate has of course in a proper case power to enter the decree nunc ])ro tunc. But this power must be carefully exercised. So, where, by a peculiar error, an administrator took out letters under a will where no probate decree was en- tered, and acted thereunder. Surrogate Eollins, upon an appli- cation to revoke the letters of administration vrith the ■will annexed, which he denied as being made by one having no standing in the proceedings, passed also upon the administra- tor's application that a decree be entered nunc pro tunc admit- ting the will to probate. This he denied on the ground that ADMITTING THE WILL TO PROBATE. 497 the failure to obtain it earlier was attributable to the negli- gence of the applicant and not to an act or omission of the court. Staples v. Hoffman, 1 Dem. 63, 66. § 7. Additional provisions as to record of wills. — The fol- lowing sections of the Code contain miscellaneous provisions with regard to the record of wills : Recording wills proved elsewhere within the state. A transcript of a wiU of real property,, proved and re- corded in any court of the state, of competent jurisdiction, and of all the notices, process, and proofs relating to the same, must, when duly exemplified, be recorded, upon the request of any person interested therein, in the surrogate's court of any county, in which real property of the testator is situated. § 3630, Code Civil Proc. Records of certain wills heretofore proved ; how far evi- dence. The exemplification of the record of a wiU, proved before the judge of the former court of probates, and recorded in his office before the first day of January, in the year 1785, certified under the seal of the officer having custody of the record, must be admitted in evidence in any case, after it has been made to appear that diligent and fruitless search has been made for the original wUl. § 3631, Code Civil Proc. The " record " must include the " proofs," or its exemplifi- cation will not make it evidence. Rill v. Orockford, 24 N. Y. 128, citing Morris v. Keyes, 1 Hill, 540. Records of certain wills heretofore proved ; how far evi- dence. An exemphfied copy of the last wiU and testament of any deceased person, which has been admitted to probate, whether as a will of real or personal property, or both, and recorded in the office of the surrogate in any county of this state, shall be admitted in evidence in any of the courts of this state, without the proofs and examination taken on the probate thereof, and whether such proofs shall have been recorded or not, with hke effect as if the original of such wUl had been produced and proven in such court, when thirty years have elapsed since the wiU was admitted to probate and recorded. And the recording of such will shall be evidence that the same 32 498 SUKROGATKS' COURTS. ■was duly admitted to probate. The exemplification of the record of a will which has been proved before the surrogate or judge of probate, or other officer exercising the hke juris- diction of another state must, when- certified by the officer having by law, when the certificate was made, custody of the record, be admitted in evidence as if the original will was produced and proved, when thirty years have elapsed since the wiU was proved. § 3632, Code Civil Proc. Records of certain wills, how far evidence ; as to wills of real property. A wiU of real property, which has been, at any time, either before or after this chapter takes effect, duly proved in the supreme coui-t, or the court of chancery, or before a surro- gate of the state, with the certificate of proof thereof an- nexed thereto or endorsed thereon, or an exemplified copy thereof, may be recorded in the office of the clerk or the register, as the case requires, of any county in the state, in the same manner as a deed of real property. Where the will relates to real property, the executor, or administrator with the will annexed, must cause the same, or an exempli- fied copy thereof, to be recorded, in each county where real property of the testator is situated, within twenty days after letters are issued to him. An exemplification of the record of such a will, from any surrogate's or other office where the same has been recorded, either before or after this chapter takes effect, may be in like manner recorded in the office of the clerk or register of any county. Such a record or exem- plification, or an exemplification of the record thereof, must be received in evidence, as if the original will was produced and proved. § 2633, Code Civil Proc. Index and fees. Upon recording a will or exemplification, as prescribed in the last section, the clerk or register must index it in the same books, and substantially in the same manner, as if it was a deed recorded in his office, and he is entitled to receive the same fees therefor, as for recording a deed. An execu- tor, or administrator with the will annexed, who causes such a record to be made, must be allowed, in his account, the fees paid by him therefor. § 2634, Code Civil Proc. Wills to he returned after probate. Except where special provision is otherwise made by law, or where the surrogate sends a will into another state or terri- ADMITTING THE WILL TO PEOBATB. 499 tory, or into a foreign country, or delivers it to a party iu in- terest, as provided in section 2620 of this act, a written will, after it has been proved and recorded, must be retained by the surrogate, until the expiration of one year after it has been recorded, and, if a petition for the revocation of pro- bate thereof is then filed, untU a decree is made thereupon. It must then be returned, upon demand, to the person who tielivered it, unless he is dead, or a lunatic, or has removed from the state ; in which case, it may, in the discretion of the surrogate, be delivered to any person named therein as devisee, or to an heir or assignee of a devisee ; or, it relates only to personal property, to the executor, or administrator with the will annexed, or to a legatee. § 3635, Code Civil Proc. Recording will proved in other states, or abroad. (See page 579, post.) Where real property situated within this state, or an inter- est therein, is devised, or made subject to a power of dispo- sition, by a win, duly executed in conformity with tlie laws of this state, of a person who was, at the time of his, or her death, a resident elsewhere within the United States, or in a foreign country, and such will has been admitted to probate within the state or territory, or foreign country, where the de- cedent so resided, and is filed or recorded in the proper oflSce as prescribed by the laws of that state or territory, or foreign country, a copy of such wiU or of the record thereof and of the proofs or of the records thereof, or, if the proofs are not on file or recorded in such office, of any statement, on file or re- corded in such ofldce, of the substance of the proofs, authen- ticated as prescribed in this article, or if no proofs and no statement of the substance of the proofs be on file or recorded in such office, a copy of such will, or of the record thereof, authenticated as prescribed in this article, accompanied by a certificate that no proofs or statement of the substance of proof of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, may be recorded in the office of the surrogate of any county in this state where such real property is situated ; and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof, in any action or special proceeding re- lating to such real property. § 21103, Code Civil Proc. 3ee also Laws 1894, chap. 731, CHAPTER VI. EEVOOATION OF PROBATE. § 1. Persons interested may apply to revoke probate. A person interested in the estate of the decedent may, within the time specified in the next section, present to the surrogate's court, in which a wUl of personal property was proved, a written petition, duly verified, containing allegations against the validity of the will, or the competency of the proof thereof ; and praying that the probate thereof may be revoked, and that the persons, enumerated in the next section but one, may be cited to show cause why it should not be revoked. Upon the presentation of such a petition, the sur- rogate must issue a citation accordingly. § 2647, Code Civil Proc. A petition must be presented, as prescribed in the last sec- tion, within one year after the recording of the decree ad- mitting the will to probate ; except that, when the person entitled to present it is then under a disability, specified in section 396 of this act, the time of such a disability is not a part of the year limited in this section, unless such person shall have appeared by general or special guardian, or other- wise, on said probate. But this section does not affect an application made pursuant to subdivision sixth of section 2481 of this act. § 2648, Code Civil Proc. Section 2514, subd. 11 (see page 2, ante), defines who are " persons interested." For the purposes of section 2647 the def- inition must be limited in contemplation of the general intent of the provision. Thus the administrator of a sister having life estate under her brother's will is not within the intent of the statute a person interested in the decedent's estate. Matter of MilUlcen, 32 Misc. 317. So, although the life tenant had com- menced a proceeding to revoke probate, his application to be substituted in her stead upon her death was denied. See, relating to action under section 2653a of the Code, decision in Wells v. Betts, 45 App. Div. 115, as to husband's right as ten- ant by curtesy, and as beneficiary under a previous will. (500) REVOCATION OP PKOBATE. 501 § 2. Grounds for application to revoke probate.— Section 2647 indicates that the application to revoke probate must be made upon allegations {a) Against the validity of the will, or (5) The competency of the proof thereof. The words, " validity of the will," relate to the will con- sidered as a duly executed instrument valid to pass real and personal property as stated in chapter V ; they do not relate to the validity of the bequests or devises contained in the will. Therefore, if after a will has been admitted to probate, a later Avill is discovered it is evident that this fact affects the validity of the will already probated as the last will and testament of the decedent, and presents a proper case for an application under section 2647. Cunningham v. Soma, 1 Redf. 462 ; Oanfield v. Crandall, 4 Dem. 111. Where it appears how- ever, subsequent to the probate of a will, that it was in fact a will executed in duplicate, the omission of the probate decree to recite this fact is a mere irregularity and affords no ground for an application to revoke probate. Matter of Grossman, 2 Dem. 69. The proceeding provided for by these sections cannot be resorted to as a cover for an attempt to open, vacate, modify, or set aside a probate decree, or for an attempt to obtain a new trial, or a new hearing for fraud, newly discovered evi- dence, clerical error, or other like sufficient cause. Such a proceeding is provided for {Pryer v. Clapp, 1 Dem. 387) by section 2481, subdivision 6, which contains this qualifying clause, " The powers conferred by this subdivision must be exercised only in a like case and in the same manner as a court of record, and of general jurisdiction exercises the same power." The application under section 2647, is an application made as a matter of right. An application under subdivision 6 of section 2481 is addressed to the favor and sound discretion of the court. If a decree has been made admitting a will to probate, it would be proper to apply to open the decree, the application being addressed to the discretion of the Surrogate (see Bough- ton V. Flint, 74 N. Y. 476), for causes coming clearly under the language of subdivision 6. For example, to allow a wit- ness to correct his testimony {Ma/rtinhof v. Martinhoff, 81 N. 502 STJREOGAT'ES' COURTS. Y. 641), or to permit an heir to come in, discovered after the decree has been made and not cited in the probate proceed- ings {Bailey v. Hilton, 14 Hun, 3 ; also Matter of Harlow, 73 Hun, 433) ; to take newly-discovered evidence, or to cor- rect palpable error. And, in such cases, it is proper for the Surrogate to re-open the decree pro tanto, that is, only in so far as is necessary for the re-examination of new evi- dence, or to correct the error. See Matter of Dey Er- mand, 24 Hun, 1. So the Court of Appeals held, that it was proper to open the proceedings and allow an heir to come in and contest probate, where it was proved that he had been forcibly prevented from appearing on the proceed- ings. Hoyt V. Hoyt, 112 N. Y. 493. Where the Surrogate has power to open the decree for fraud or other like cause, it has been held, that the power is not limited as respects the time within which it must be exercised by sections 1282 and 1290 of the Code of Civil Procedure. See Matter of Flynn, 136 N. Y. 287. This further emphasizes the distinction between the remedies under sections 2481 and 2647, for section 2648 expressly limits the time within which an application to revoke probate must be made to one year after the recording of the decree admitting the will to probate. It has been held (see Matter of Hamilton, 20 N. Y. Supp. 73), in view of the fact that sec- tion 2647 limits proceedings to revoke probate to wills of per- sonal property {In re Kellum, 50 N. Y. 298. See also Matter of Donlon, 66 Hun, 199), that an application to set aside a decree probating a will of real and personal property, must be made under section 2481, subdivision 6. Surrogate Coffin who empha- sized this rule, declared the proper practice under such sub- division to be upon affidavit, praying for an order, that the de- cree be vacated or opened, and that all persons interested might be cited to show cause why such order should not be made ; and in the case before him he directed that the citation should issue not only to the heirs-at-law and next of kin who were cited to attend the probate, but also the legatees, if any, who did not belong to either class and were thus not required to be cited. This was a case where a later will had been discovered, and Surrogate Coffin remarked {Matter of Hamilton, ibid., page 74): " On the return day of the citation, if there were no opposi- tion, or if there were, and the proper facts stated in the KEVOCATION OF PROBATE. 503 petition and affidavits were established and deemed sufficient to justify it, an order would be made setting aside the decree provided the later will should be sufficiently established to warrant its admission to probate. Then, in case it would not be, the original decree would stand. If the order prayed for were granted as suggested, then the usual proceedings would be had to revoke the later will. If successful, it would, as above stated, operate to make the decree of revocation final. If, on the contrary, it failed, the original decree would remain of full force." § 3. Same subject. — ^On the other hand it is manifest that the application foi' the revocation of probate must be made for reasons coming within the meaning of section 2647. Thus where an application was made to revoke probate on the ground that the Surrogate making the decree had no jurisdiction to take proof of the will, Surrogate Coffin denied the application, pointing out, that the allegations of the petition were neither against the validity of the will, nor the competency of proof, so that the only remedy could be under subdivision 6 of sec- tion 2481. Heilman v. Jones, 5 Eedf. 398. The person interested, contemplated by section 2647, must be a person coming within the limitation of the definition in subdivision 11 of section 2514 ; this, it will be recalled, expressly excludes creditors. The petition should expressly describe the applicant as a person interested, specifying his exact relation- ship to the decedent, whether as heir-at-law or next of kin, devisee, legatee, etc. See Matter of the Will of Bradley, TO Hun, 104, 108. See also Matter of James, 87 Hun, 57. The Surrogate has power upon this proceeding, as in other proceed- ings, to determine primarily whether the petitioner is a person interested in the estate of the decedent as required by this sec- tion. See Matter of Peaslee, 51 N. Y. St. Eep. 134. Accord- ingly, if the applicant is shown to have accepted benefits under the will he is estopped from attacking the probate of the will and cannot maintain the proceedings. Matter of Peaslee, supra; Matter of Richardson, 81 Hun, 425. § 4. Object of the application. — The Court of Appeals {Matter of Gouraud, 95 IST. Y. 256, 260, 262) has held, that the Code substantially re-enacts the former provisions of the Ee- vised Statutes (2 E. S. 61, sections 29, 30, 31, 32, 33, 34, 35), and in a previous case the court had held {Matter of Will of 604 surrogates' cotjbts. Kellum, 50 N.Y. 298), that it was in consequence of the conclu- sive effect of the probate of a will of personal property that the provisions were adopted which admitted the next of kin, within one year thereafter, to contest the will by filing allegations against the validity of the will or the competency of the proof thereof. It will be noted that the language was identical with that of section 2647, and in the case cited Judge Rapallo said : " These provisions are an important safeguard against impo- sition or mistake, and afford the next of kin a whole year after the probate, to investigate the circumstances attending the exe- cution of the will." Aad he adds, that " no such provisions are necessary as to wills of real estate, as the probate may be repelled at any time by contrary proof." And so, in the Oouraud case, supra, Judge Earl held, that those seeking the revocation of the probate of a will were not confined in their allegations to such matters merely as were not investigated and tried when the will was admitted to pro- bate. He says : " The adjudication admitting the will to probate is not res adjudicata upon the hearing of the allegations filed for a revo- cation of the probate. For that purpose the whole case is left open, and a party desiring to contest the probate in that way has the right to try over again, upon the same, or other addi- tional evidence, the very questions which were litigated when the will was first proposed for probate." And he points out that while this double litigation of the same questions upon merely the same evidence and before the same tribunal may in some cases operate very inconveniently, yet the design of the statute is clear ; and he alludes to the non-conclusiveness of a decree admitting a will of real estate to probate, o.bserving, " Whenever title to real estate is at- tempted to be made under it, its validity may be resisted on precisely the same grounds that were litigated when it was admitted to probate, or upon any other grounds." Consequently it was held in that case, that the Surrogate could not refuse to entertain the application for the revocation of probate merely because the allegations filed therein were substantially filed against the original probate. Ihid. See opinion of Earl, J., at p. 261. See also Matter of Liddington, 20 K Y. St. Eep. 610. § 5. Time within which application must be made.— Sec- REVOCATION OF PROBATE. 605 tion 2648 above quoted requires the petition to be presented within one year after the recording of the decree admitting the will to probate. In the Gouraud case, 95 N. Y. 256, 262, it was held that the presentation of the petition to the Surrogate under section 2648 corresponded to the filing of allegations under section 31, 2 R. S. 61, under the former practice. This, therefore, means the time when the petition is filed in the oflQce of the Surro- gate {Matter of Layton, 15 Misc. 660), and not, as has been in other connections held, the time when it comes up before the Surrogate for his judicial action. If, therefore, the petition is presented within the year the proceeding is deemed to have commenced within the meaning of section 2517. But in that case it is essential that section 2517 be fully complied Avith in its further provisions in order to entitle the petitioner to the benefit of that section. Accordingly, the citation issued upon the presentation of such petition, must within sixty days there- after be served as prescribed in section 2520 upon the adverse party, or upon two or more adverse parties who are jointly lia- ble or otherwise united in interest, or within the same time the first publication of the citation must be made pursuant to an order made as prescribed in section 2522 of the Code. See section 2517 and Matter of Bennett, 9 IST. Y. Supp. 459. If the citation is not so served within these sixty days, the Surrogate loses his jurisdiction. Pryer v. Glapp, 1 Dem. 387. It has been held that the sixty days, within which the citation must be served, run from the issuance of the citation and not the presentation of the petition. See Matter of Bradley, 70 Hun, 104, 109, referring to section 2519 of the Code. If the peti- tion however is duly presented and the citation issued within the statutory time and properly served, irregularity or mistake in the citation is amendable so long as the court has acquired jurisdiction of the parties. See Matter of Soule, 6 Dem. 137. But the citation must be served upon all the parties to the pro- ceeding, except in the case covered by section 2517, where sev- eral of them are united in interest. Consequently where in a proceeding to revoke probate, the petition having been pre- sented in time, and the citation duly issued and served upon the executor, but no service made upon other necessary par- ties, it was held that the proceeding must be dismissed. Foun- tain v. Carter, 2 Dem. 313. See also Bonnetfs Will, 1 Connoly, 506 StTBEOGATBs' COURTS. 296. See also Matter of Phalen, 6 Dem. 446, and reporter's note, pages 448 to 453. It is further apparent from section 2648, that the year within which the petition must be presented runs, in the case of a per- son under any disability specified in section 396 of the Code, only from the time the disability ceases or is removed. So where an infant not appearing by general or special guardian or otherwise upon the probate of the will, desires to apply for the revocation of its probate, he is not debarred by sections 2647 and 2648 until a year has expired from the time he attains his majority. See Matter of Becker, 28 Hun, 207. But if it ap- pear that the infant has accepted benefits under the will after he became of age, this will be deemed to be a ratification of the probate on his part sufficient to estop him from maintaining the proceeding. See Matter of Richardson, 81 Hun, 425. The time from which the year begins to run, within which application to revoke probate of the will must be made, is stated in section 2648 to be " the recording of the decree admitting the will to probate." Confusion however is likely to arise where the will is admitted to probate after a trial by jury in the Supreme Court, or as formerly in the Court of Common Pleas. In such a case it has been held, that the date which sets the year running, is the day of the recording of the de- cree in the court where the proceeding for the proof of the will were had. Matter of Ruppaner, 9 App. Div. 422. In the case cited the petition for the revocation of probate was pre- sented to the Surrogate of New York County on the 3d of March, 1894. The proceedings for the probate of the will had been taken in the Court of Common Pleas under section 2486 of the Code as it stood prior to the amendment of 1895, and judgment was entered in that court admitting the will to pro- bate November 2, 1892. The judgment and will were not filed in the office of the Surrogate until January 19, 1893, and they were not recorded until after the 3d of March, 1893. The Sur- rogate dismissed the petition as not having been presented in time and the Appellate Division, Rumsey, J., writing the opin- ion affirmed his decree. § 6. The petition and citation. Citation, to whom to he directed. A petition, presented as prescribed in the last two sec- REVOCATION OF PEOBATE. 607 tions, must pray that the citation may be directed to the executor, or administrator with the wUl annexed ; to all the devisees and legatees named in the will ; and to all other persons, who were parties to the special proceeding in which probate was granted. If a legatee is dead, his executor or administrator must be cited, if one has been appointed ; if not, such persons must be cited as representing him, as the surrogate designates for the purpose. § 3649, Code Civil Proc. 2 R. S. 61, § 32. The following is suggested as a precedent for a petition in this proceeding : Petition for rerocation of probate under § 2647, C. C. P. Note. If will was established after trial in Su- preme Court note the fact and the date the judgment of that court was entered. Surrogate's Court, County of In the Matter of the Applica- tion of a person interested in the estate of Deceased, - to revoke the probate of his alleged Last Will and Tes- tament. To the Surrogate's Court of the County of The petition of respectfully shows to the court and alleges : I. That your petitioner is a person interested in the estate of late of deceased, being (here state relationship to decedent). II. That on the day of 18 a de- cree was recorded in the office of the Surrogate of the county of (note) admitting to pro- bate as a will of personal property an instrument in writing bearing date the day of 18 as and for the last will and testament of the decedent above named- III. And your petitioner further shows on in- formation and belief that the said instrument so admitted to probate as and for the last will and testament of deceased, was not in fact his last will and testament, and was not entitled to probate as such, for the following reasons : (here insert, " allegations against the validity of 508 surrogates' couets. Note. The alle- gations against the validity of the will may be worded substan- tially as if the ap- plicant were filing objections with a view to contesting probate (Henry v. Henry, 3 Dem. 322), addressing the allegations to any matter touch- ing which he would have a right to oppose the original pro- bate of the will Zt seems, however, that section 2647 does not authorize the applicant to put in issue the validity, construc- tion, or effect of any disposition of personal property contained in the the will 01- the competency of the proof thereof " as required by section 2647). Note. IV. And your petitioner further alleges that under the said decree admitting said will to pro- • bate and recorded as aforesaid on the day of 18 letters testamentary were issued to one of the executors therein named, who qualified according to law ; and said execu- tor is now administering the estate of the said decedent by virtue of such letters. Note. Sec- tion 2649 provides that if a legatee is dead his executor or administrator must be cited if one has been ap- pointed, if not, such person must be cited as repre- senting him, as the Surrogate will, under sec- tion 2624, as he could upon the original contest Matter of Ellis, 22 St. Kep. 77, Ran- som, Surr. See however. Matter of the Will of Gouraud, 95 N. T. 256, 260. If the allegations are ad- dressed to the competency of the proofs either ex- clusively or in addition to the question of the validity of the will, the petition should specify concisely the re- spects in which the proofs taken in the probate proceedings are alleged to have been incompetent to prove due exe- cution, testamen- tary capacity and freedom from re- straint and undue influence. V. That all the devisees and legatees named in the said last wHl, and all other persons who were parties to the special proceeding in which probate was granted as aforesaid are set forth in the following schedule showing their names, ages and addresses together with the capacity in which they are severally entitled to be made parties to this proceeding. Xote. Name. Age. Address. Kblationship. REVOCATION OF PROBATE. 509 may designate for Wherefore, your petitioner prays for a decree the purpose. Con- revoking the probate of said aUeged last wiU and sequen y i any Testament of deceased, and that a cita- legatee be dead ,. . ,. , , , the fact of his ^^®^^ directed to the said (here spec- death and of the ^7 t^^ executor or administrator with the will appointment of an annexed, devisees, legatees and other persons executor or ad- specified in the foregoing schedule, describing luinistrator must each) requiiing them to show cause why said de- e ege in a - ^^^^ should not be revoked, and why your peti- tioner should not have such other and further relief in the premises as may be just. (Dated.) (Signature.) (Verification.) Upon the presentation of such a petition the surrogate must issue a citation accordingly. § 3647, Code Civil Proc. The citation will follow the usual form, citing the persons to whom it is addressed, ' ' to show cause why the probate of the aUeged last will and testament of late of deceased, admitted to probate by a decree recorded in the office of the Surrogate in the county of on the day of 18 should not be re- voked." It is manifest that it would not be proper to commence pro- ceedings to revoke probate of a will, while the decree admitting it to probate is suspended as to its operation by an appeal duly perfected. This however would not be true, if the appeal is not from that part of the decree which admits the will to pro- bate, but merely from some incidental provision thereof, such as the determination of the Surrogate, where some party has put in issue the validity, construction, or effect of a testamen- tary disposition of personal property contained in the will. For whether the Appellate Court should affirm or reverse that decision it will in nowise affect the question, whether the will was executed in pursuance of the statutory requirements by a person having testamentary capacity and whether or not he was unduly influenced which are the only questions involved de novo in the proceedings for revocation of probate. On the 510 subrogates' courts. other hand, if on the proceedings to revoke probate, the will should be declared invalid, the final determination of the ques- tion of construction will become of mere academic interest ; while if the probate should be sustained, the decision on the appeal would furnish a guide to the Surrogate upon the ac- counting of the executor and in framing the decree directing the distribution of the estate. In re Bonnett, 9 N. Y. Supp. 459, 460. § 7. Effect of pendency of proceeding. — The effect of the pendency of proceedings to revoke probate is to relegate the executor, from the time the citation is served upon him, prac- tically to the position of a temporary administrator ; this is by virtue of section 2650, which is as follows : Executor, etc., to suspend proceedings. After service upon him of a citation, issued as prescribed in the last three sections, the executor, or administrator with the mil annexed, must suspend, until a decree is made upon the petition, all proceedings relating to the estate; except for the recovery or preservation of property, the collection and payment of debts, and such othei' acts as he is expressly allowed to perform, by an order of the surrogate, made upon notice to the petitioner. § 3650, Code Civil Proc. This section is intended to prevent any acts by the executor, which might, in the event of probate being revoked, result in placing any of the property of the estate beyond the reach of the heirs and next of kin. The section has been declared to be intended to restrict the powers of the executor, not to enlarge the powers of the Surrogate. See Matter of McQowan, 28 Hun, 246; MatUr of Hoyt, 31 Hun, 176. This section should be considered with section 2582, by which the powers of executors are defined during the suspen- sion of the probate decree by virtue of an appeal duly perfected. See Bible Society v. Oakley, 4 Dera. 450 ; Matter of Van Voor- his, 1 K Y. St. Rep. 306. The words, " such other acts as he is allowed to perform by an order of the Surrogate," must be construed with the whole context so that the acts, which the Surrogate will be justified in permitting him to perform under this section, must be such as look to the recovery or preservation of property, or the col- KEVOCATION OF PliOBATE. 511 lection and payment of debts. Therefore in the cases above cited, it was held, that the Surrogate was without power to direct any distribution of the estate or even the advance of parts of legacies. See Matter of MoGowan, and Matter of Hoyt, supra ; La Bau v. Vanderhilt, 3 Eedf . 384, 418, 419. In the Meyer case, 131 N. Y. 409, where proceedings had been begun for the revocation of the probate of the testator's will, by his brother, who with two sisters, were the only heirs- at-law of the decedent, it was held, by the Court of Appeals, that the pendency of the proceedings in nowise affected the liability of the executors to pay interest upon the funds of the estate, intermediate the death of the testator and the ultimate probate of his will, which funds it appeared were being held by them and used in their business as a firm. The question arose in the Stewart case, 131 N. Y. 274, whether the suspension of the powers of the executor under section 2650 operated so as to prevent the imposition of inter- est in favor of the State upon the unpaid succession tax im- posed by the collateral inheritance act of 1885. The legacy in this case amounted to $74,914.42, which tax was by the decree of the Surrogate made to bear interest at six per cent from April 25, 1888, a date eighteen months after the death of the testatrix. Prior to that date proceedings were duly instituted for the revocation of the will of Cornelia M. Stewart, which proceedings did not terminate until January 16, 1890, and it was claimed that interest should not be charged upon the un- paid taxes during this period. The Court of Appeals however held that it should, basing their decision upon the provision of the statute which enacted, that a modified rate of interest must be charged where, " by reason of claims made upon the estate, necessary litigation, or other unavoidable cause of de- lay, the estate of the decedent cannot be settled. Matter of StewaH, supra, page 285. § 8. The hearing. — The hearing in a proceeding to revoke probate is substantially the same as if the v?ill were offered for probate de novo, Upon the return of the citation, the surrogate must pro- ceed to hear the allegations and proofs of the parties. The testimony, taken upon the application for probate, of a wit- ness who is dead, or without the state, or who, since his 512 subrogates' courts. testimony was taken, has become a lunatic or otherwise iu- competent, must be received in eyidence. § 3651, Code Civil Proc. except as to such statutory rights as are expressly limited to probate proceedings, such as the right under section 2618 to an order requiring the examination of the subscribing witnesses. See Hoyt v. Royt, 112 N. Y. 493, affirming 9 IST. Y. St. Eep.731. The situation of the proponents of the will practically does not differ from that which they would occupy if the issues in- volved in the proceeding had been made by objections duly filed at the time the paper in dispute was originally offered for pro- bate. Hoyt V. Jackson^ 2 Dem. 443, Surrogate Rollins, citing Code Civil Procedure, section 2652 ; Collier v. Idley''s Exeautor, 1 Bradf. 94. In the case cited by Surrogate Kollins, Surrogate Bradford held, that the proponent would be obliged to prove the will by original proof independently of the proofs first offered ; that the probate decree could not be offered in evidence nor even the deposition of any of the witnesses taken on the first proof be read in evidence except in the precise contingencies pointed out by the statute. Collier v. Idley^s Executor, supra, page 99. The precise contingency pointed out by section 2651 in this re- gard is, that the testimony, taken upon the first probate, of a witness who upon the proceedings to revoke probate proves to be dead, without the State, or to have become a lunatic, or otherwise incompetent, must be received in evidence ; otherwise the testimony must all be taken de novo, the proponent sustain- ing the same burden, and the contestant being as free in regard to the scope of his investigation as if no adjudication had been made in the premises. See Matter of Gouraud, 95 N. Y. 256 ; Matter of Soule, 19 N. Y. St. Rep. 532 ; Royt v. Hoyt, 112 N. Y. 493, 511, 512. In the case last cited Judge Gray observed : " The proceeding taken below was, within the terms and pur- view of section 2647, for the revocation of a will of personal property, and was so recognized by all parties. The effect of presenting the petition was to procure a re-examination of the case and to have proofs taken de novo. The executors, as pro- ponents, proceeded to prove the will by original proof, inde- pendently of the first proof, and the practice was right and such as is contemplated by section 2651. That section was a re-en- actment of a provision of the Revised Statutes (2 R. S. 61, sec- REVOCATION OF PROBATE. 513 tion 28) and necessarily implies that the only evidence, which need not be taken anew, is in the case of witnesses dead, with- out the State, or insane." § 9. The decree. Decree. If the surrogate decides that the will is not sufficiently proved to be the last will of the testator, or is, for any reason, invalid, be must make a decree revoking the probate thereof ; otherwise, he must make a decree confirming the probate. § 3653, Code Civil Proc. Section 2652 must be read in connection with 2622, which provides that " before admitting a will to probate, the Surro- gate must inquire particularly into all the facts and circum- stances, and must be satisfied of the genuineness of the will and the validity of its execution. Surrogate EoUins {Cooper v. Benedict, 3 Dam. 136) held that the same doctrine is applica- ble to proceedings to revoke probate as to a proceeding for probate, and that the principle enunciated in Delafield v. Par- ish, 25 N. Y. 9, held good in both ; the principle being, " In all cases the party propounding the will is bound to prove to the satisfaction of the court, that the paper propounded in ques- tion declares the will of the deceased, and that the supposed testator at the time of making and publishing the document was of sound and disposing mind and memory. ... If upon a careful and accurate consideration of all the evidence on both sides, the conscience of the court is not judicially satisfied that the paper in question contains the last will of the deceased, the court is bound to pronounce its opinion that the instru- ment is not entitled to probate." It is the duty of the Surrogate to revoke probate wherever upon the same testimony it would be his duty originally to deny probate. For example, if it is not clear from the testi- mony that the testator was physically and mentally competent at the time of execution, probate should be revoked. See Knapp v. Reilly, 3 Dem. 427. But where, on the contrar^^, there is nothing in the records or proofs on the proceedings to revoke probate to lead the Sur- rogate to doubt the genuineness of the will or its validity, the proceedings to revoke must be dismissed. Matter of Walt/ter's 33 514 SUBKOGATBS' COTJETS. Will, 7 N. Y. Supp. 417 ; Matter of Johnston, 1 Connoly, 518. Where a will of which probate was revoked as to personalty alone, upon the ground that it was not the will of testator in respect thereto, contained a clause revoking all former wills, it was held that this revocation clause fell with the will, and could not, at least as to personalty involved, be invoked to de- feat a prior valid will. Matter of Miller, 28 Misc. 373. § 10. Notice of decree of revocation. Where the decree revokes the probate of a will, as pre- scribed in this article, the surrogate must cause notice of the revocation to be immediately published, for three successive weeks, in a newspaper published in his county. § S653, Code Civil Proc. The form of the decree may be substantially as follows : Surrogate's Court Caption. Present : Hon. Surrogate. } a person interested in the estate of late of deceased, having on the day of 18 presented to this Surrogate's Court, in which the wiU of said decedent was proved as a will of personal property, a written petition duly verified containing allegations against the validity of said will and the competency of the proofs thereof ; and praying that probate thereof be revoked ; and that the executor of said wUl, the devisees and legatees named therein, and also the persons who were parties to the special proceeding in which probate was granted, might be cited to show cause why it should not be re- voked ; and a citation having accordingly issued directed to the executor (s) under said will, to all the devisees and legatees therein named, and to all other persons who were parties to the special proceeding in which probate was granted Decree revok- ing probate. Title. REVOCATION OF PROBATE. 515 Kote. See lan- guage of § 2652, C. C. P. Note. The wording of article 2d of title 3 of chapter 18, does not apparently contemplate the revocation of the decree as would requii'ing them to appear before the SuiTogate of the county of and show cause why the probate of said will should not be revoked. Now, the said citation having been returned, on reading tind filing proofs of due service thereof on all the persons to whom it was dkected, and on the return day of said citation, there having appeared (recite appearances in detail including appearances by special guardian, reciting due appointment thereof) ; and witnesses having been examined and proofs taken touching the facts and circumstances attending the execution of said wiU and the competency of said testator to execute the same, and his freedom from restraint or undue influence ; and due deliberation having been had upon the allegations and proofs of the parties, whereby it appears to the satisfaction of the Surrogate that the said will is not sufficiently proved to be the last wiU of the testator (note) (or if the Surrogate decides that it is for any reason invaUd state the fact and the reason concisely) ; It is accordingly on motion of attorney for Ordered, Adjudged and Decreed, that the in- strument heretofore admitted to probate by a decree of this Surrogate, recorded on the day of 18 is not sufficiently proved to be the last will of said testator (or if he has decided that it is for any reason invalid state the reason concisely) ; And it is further adjudged and Decreed, that the probate of said alleged last will and testa- ment of deceased, together with the let- ters testamentary issued thereon, on the day of to and as executors of said alleged last will and testament be and the same hereby are revoked. Note. be necessary in case the proceed- ing were to vacate or set aside the decree. The de- cree was valid when made and stands in the rec- ords of the court', but the probative effect of tlie de- cree is revoked and the letters testamentary is- 516 SUBBOGATBS' COTJBTS. sued thereunder irregular to incor- granting probate; are revoked. It poi-ate in the de- that is merely ren- is accordingly un- cree revoking dered nugatory by necessary and probate, a revoca- the decree revok- would perhaps be tion of the decree ing probate. If the Surrogate affirms instead of revoking probate, the form of the decree can be readily adapted from the foregoing, and in either case it is proper to insert the necessary directions as to the payment of costs and taxable disbursements. § 11. Determining validity of a will. — It is proper in this chapter to discuss section 2653a, of the Code of Civil Proced- ure, by which a new remedy is provided capable of being ex- ercised within a longer period than that for revocation of probate ; but which remedy must be exercised by means of an action in the Supreme Court for the county in which probate of the will was had. The section as now amended is as fol- lows : Determining validity of a will. Any person interested as devisee, legatee or otherwise, in a -will or codicil admitted to probate in this state, as provided by the code of civil procedure, or any person interested as heii'-at-law, next of kin or otherwise, in any estate, any por- tion of which is disposed of, or affected, or any portion of which is attempted to be disposed of, or affected, by a will or codicil admitted to probate in this state, as provided by the code of civil procedure (chap. 701, Laws, 1897, inserted here "within two years prior to the passage of this act, or any heir-at-law or next of kin of the testator making such wiU,")* may cause the validity (same act inserted here, " or invalid- ity")* of the probate thereof to be determined in an action in the supreme court for the county in which such probate was had. AU the devisees, legatees and heirs of the testator and other interested persons, including the executor or admin- istrator must be parties to the action. Upon the completion of service of all parties, the plaintiff shall forthwith file the sum- mons and complaint in the office of the clerk of the court in which said action is begun and the clerk thereof shall forthwith certify to the clerk of the surrogate's court in which the wiU has been admitted to probate, the fact that an action to deter- mine the validity of the probate of such wiU has been com- menced, and on receipt of such certificate by the surrogate's * See post p. 522. REVOCATION OF PROBATE. 517 court, the surrogate shall forthwith transmit to the court in which such action has been begun a copy of the wUl, testimony and all papers relating thereto, and a copy of the decree of pro- bate attaching the same together, and certifying the same un- der the seal of the court. The issue of the pleadings in such action shall be confined to the question of whether the writing produced is or is not the last will and codicil of the testator, or either. It shall be tried by a jury and the verdict thereon shall be conclusive, as to real or personal property, unless a new trial be granted or the judgment thereon be reversed or vacated. Oa the trial of such issue, the decree of the surro- gate admitting the will or codicil to probate shall be prima facie evidence of. the due attestation, execution and validity of such will or codicil. A certified copy of the testimony of such of the witnesses examined upon the probate, as are out of the jurisdiction of the court, dead, or have become incom- petent since the probate, shall be admitted in evidence on the trial. The party sustaining the will shall be entitled to open and close the evidence and argument. He shall offer the wfil in probate and rest. The other party shall then offer his evidence. The party sustaining the will shall then offer his other evidence and rebutting testimony may be offered as in other cases. If aU the defendants make default in pleading, or if the answers served in said action raise no issues, then the plaintiff may enter judgment as provided in article two of chapter eleven of the code of civil procedure in the case of similar defaults in other actions. If the judgment to be entered in an action brought under this section is that the writing produced is the last will and codicO, or either, of the testator, said judgment shall also provide that all parties to said action, and all persons claiming under them subsequently to the commencement of the said action, be enjoined from bringing or maintaining any action or proceeding, or from interposing or maintaining a defense in any action or proceed- ing based upon a claim that such writing is not the last will or codicil, or either, of the testator. Any judgmput hereto- fore entered under this section, determining that the writing produced is the last will and codicil, or either, of the testator, shall, upon application of any party to said action, or any person claiming through or under them, and upon notice to such persons as the court at special term shall direct, be amended by such court so as to enjoin all parties to said action, and all persons claiming under the parties to said 618 surrogates' courts. action subsequently to the commencement thereof, from bringing or maintaining any action or proceeding impeach- ing the validity of the probate of the said will and codicil, or either of them, or based upon a claim that such writing is not the last will and codicil, or either, of the testator, and from setting up or maintaining such impeachment or claim by way of answer in any action or proceeding. When final judgment shall have been entered in such action, a copy thereof shall be certified and transmitted to the clerk of the surrogate's court in which such will was admitted to probate. The action brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate, but persons within tlie age of minority, of unsound mind, im- prisoned, or absent from the state, may bring such action two years after such disability has been removed. § 3653a, Code Civil Proc. § 12. What remedy the section affords.— Section 2653a furnishes a new remedy being incorporated into the Code of Civil Procedure by chapter 591 of the Laws of 1892 which pur- ported in terms to amend article 2, of title 3, of chapter 18 (which relates to revocation of probate), by adding thereto a new section to be known as section 2653a. " At the time of the adoption of this amendment the probate of a will was conclusive as to personal property unless revoked by the proceeding in Surrogate's Court as above stated, but the probate was only prima facie conclusive as to the real estate devised by the will so that the heir could bring ejectment after probate not barred by the Statute of Limitations. A great necessity, therefore; existed of further limiting the right of the heir to contest the devises of a will in order to quiet titles to real estate, and in the light of this necessity we will consider the effect of section 2653a. The purpose of this amendment is manifest. It is to provide a procedure by an action in the Supreme Court to determine the validity of the probate of any will, whether of real or personal property or of both, and re- quiring such an action to be commenced within two years after the will has been admitted to probate, and the question to be tried is whether the writing produced is or is not the last will of the decedent, and that question is to be tried by a jury and the procedure upon the trial is pointed out, and it provides that the verdict of the jury shall be " conclusive as to REVOCATION OP PEOBATE. 519 real or personal property unless a new trial be granted or the judgment thereon be reversed or vacated." The amendment does not affect the remedy provided in the Surrogate's Court by special proceedings under the title amended, but only pro- vides an additional remedy by action." Snow v. Hamilton, 90 Hun, 157, 161. The section originally read, " any person interested in a will or codicil," and it was at first contended that this language precluded persons not named in a will from bringing the action contemplated by the section. It was held however {Snow v. lIamiUon,^(i Hun, 157, 161), that devisees, legatees, heirs and next of kin, were persons interested within the meaning of the section, citing Wager v. Wager, 89 N. Y. 161. And the section has since been amended so as to read in its present form, " any person interested as devisee, legatee or otherwise in a will or codicil," with the additional provision, " or any per- son interested as heir-at-law, next of kin or otherwise in any estate, any portion of which is disposed of or affected, or any portion of which is attempted to be disposed of or affected, b}' a will or codicil .... [the words " or any heir-at-law, or next of kin of the testator making such will," were put in by chap. 701 of 1897, in effect May 22, 1897, the effect on which of chap. 104 of the same year is commented upon on page 522, post], thus embodying in the statute the rule already laid down b}"^ the courts. It will be noticed further that the section fur- nishes a remedy applicable to all wills, whether of real, or of personal property, and enables the plaintiff in the action to secure a trial before a jury of the issue, .whether the writing produced is, or is not, the last will of the testator, which is made to include any codicil probated therewith ; but the pro- vision while intended to insure a trial by jury as to the validity of the will or codicil goes no further than to provide, that the plaintiff should be entitled to pursue this inquiry in the Su- preme Court, in which court he is entitled to a trial by jury as distinguished from a trial at special term, but his right to go to the jury is conditioned as it would be in the trial of any other action in that court. The court has the same power therefore to direct a verdict that it has in any other case. Hawke v. Hawhe, 82 Hun, 439 ; Katz v. Sohnaier, 87 Hun, 343, 346. In view of the fact, however, already pointed out, that sec- tion 2653a was expressly enacted as an amendment to ar- 520 SUBKOGAXES' COTIRTS. tide 2, relating to the revocation of probate, it must be construed in connection with the other sections of article 2 ; accordingly it has been held that the section provides merely an additional remedy being supplementary to, and not intended to repeal the other sections of article 2 ; and that consequently since "a per- son interested in the estate must apply for revocation within one year after the recording of a decree admitting to probate a will of personal property," under section 2648 in default of which, as to such property, the probate concludes all mankind (see Eoyt V. Hoyt, 112 N. Y. 493, 505), the intent of the legislature was to afford equal relief where relief was needed, namely : «'ith regard to real estate, and the object was to expedite, and not to protract the settlement of estates. See Long v. Hodgers, 79 Hun, 441. Judge Barrett in his opinion at page 443 re- marked : " It is clear, therefore, that the intention was in adding this section to embrace it within the existing system, not to sub- stitute it therefor. And there is no inconsistency or irrecon- cilable repugnancy between the two systems, when the mischief aimed at is advisedly considered. As to the personalty, the functions of the existing statutes continue and the effect of probate after lapse of a year remains unaltered. This function does not conflict with the function of the new section, which operates upon real estate, and which affords a practical method of making that conclusive which otherwise would remain in- definitely presumptive. " There is nothing in the phraseology of the new section which militates against this construction. It is true that we find these words therein : ' It shall be tried by a jury, and the verdict thereon shall be conclusive as to real or personal property,^ etc. But this does not say that ' a person interested in the estate of the decedent ' shall not be otherwise concluded. Nor does it limit the effect of his failure to apply for revocation under sec- tions 2647 and 2648 within the year. It may entitle ' a person interested in the will' — which is the phrase used in the new section to indicate the persons who may proceed thereunder— as distinguished from ' a person interested in the estate, (which is the phrase used in section 2647), to bring the action to vali- date the will, even during the running of the year. But it certainly does not authorize a person who has omitted to apply for revocation within the year, and as against whom the pro- REVOCATION OF PROBATE. 621 bate has become conclusive, to inaugurate a fresh contest there- after." Long V. Rodgers, 79 Hun, 441, 443. The effect of this decision was merely to prevent a person, who could have brought proceedings to revoke probate, from bringing an action to determine the validity of a will, unless he brought such action before he was concluded by the lapse of time, by the decree admitting the will to probate. But in view of the drastic amendment of 1897 designating the persons enti- tled to bring the action under section 2653a, it is clear that the rule laid down in Long v. Rodgers has been obviated. The language contrasted in Judge Barrett's opinion to the words, " a person interested in the estate of the decedent " found in section 2647 being now not " person interested in a will, " but " any person interested as devisee, legatee or otherwise in a will .... or any person interested as heir-at-law, next of kin, or otherwise in any estate. . . ." The pecular tinkering by the legislature with section 2653a in 1897 cannot but result in some confusion. The Court of Appeals in Lewis v. Cook, 150 N. Y. 163, had held that the lan- guage of the section as it then existed contemplated an action, to be brought by some person interested in sustaining the will to which all persons interested in the disposition of the tes- tator's estate should be made parties ; and that the action should be one wherein the validity of the probate of the will might be determined conclusively as against them; and Judge Gray called attention in that case (see page 165) to the fact that, under sections 2647 and 2648 authority already existed for the maintenance of a proceeding by a person interested in the estate of the decedent, to revoke the probate of a will at any time within one year after the decree admitting the will to pro- bate; and he says (at page 166) that such person had the opportunity of contesting before the Surrogate, the validity of the testator's will, and that he had the right to continue the contest through the appellate courts, and moreover that by rea- son of section 2647 he had also a year from the recording of the final decree within which he might revive the contest and secure a trial of the matter de novo (citing Hoyt v. Hoyt, 112 N. Y. 493, 506). "There is noway, however," says Judge Gray, " by which the validity of a will and its probate could be once and for all established and placed beyond attack by the heirs-at-law until the enactment of section 2653a. They 522 surrogates' cottbts. could put the validity of the will of the decedent in question in an action involving title to real property, but a person taking an interest under the will was without remedy to establish his title and to prevent such actions." See Anderson v. Ander- son, 112 N. Y. 104* § 12a. Effect of section 3653 as amended.— Shortly after this decision appeared in the reports, the legislature passed two acts amendatory to the section. The first, L. 1897, c. 104, was passed March 23, 1897, and was to take effect on September 1, 1897. Two months later, May 22, 1897, L. 1897, c. 701, another act Avas passed to take effect immediately. Chapter 701 amended the act so that it read, "Any person interested .... may cause the validity or invalidity of the probate .... to be determined in an action," limiting the ac- tion to one under a will or codicil " admitted to probate in this State as provided by the Code of Civil Procedure, within two years prior to the passage of this act^'' and added to the descrip- tion of persons who could bring such an action involving the validity or invalidity of the probate, " Any heir-at-law or next of kin of the testator making such will." Chapter 701 did not expressly repeal chapter 104. In the first edition of this work, the auditor contended that no repeal by implication is necessarily to be inferred because there is no inconsistency in the legislature's providing that the section should, from and after September 1, read one way, and later providing that in the meantime it should read another way, because, further, chapter 104 provided that while it should go into effect September 1, 1897, it should not affect then pending proceedings. There have been three decisions, however, since the amend- ment which indicate that the Supreme Court takes the view that chapter 701, legislating as it does upon the whole subject and being a later explanation of the legislative will, supersedes chapter 104. See Reid v. Gurtin (1st Dept.), 51 App. Div. 545, 548; Ocoloch v. Eeles (4th Dept.), 37 App. Div. 114, 118; Wells V. Betts (3d Dept.), 45 App. Div. 115, 117. The case first cited did not necessarily involve the determina- tion of this question, although it is caref uUy reasoned out in the whatever the intent of the legislature, it would appear that the writer's original contention was not unreasonable in view of the fact that it was concurred in by the chairman of the late commission of statutory x-evision. REVOCATION OF PROBATE. 523 opinion. The other two cases assume without discussion that the effect of chapter YOl w^as to supersede chapter 104. The question has not yet been passed upon in the Court of Ap- peals and while the author adheres to the opinion that the acts as drawn made chapter 701 operative only until September 1, 1897, when chapter lOi went into effect, amending the section " so as to read as follows," nevertheless it is clear that these cases must control the practice until overruled. It is also to be hoped that they will not be overruled. Assuming these cases to be authoritative and the patchwork of the legislature to be cured by the application of "judge- made law," the reasoning of Mr. Justice Patterson in Reid v. Curtin is wholly satisfactiory. He points out, at page 5i8, " It is to be noticed that all that can be done under the amend- ment of March may stiU be done under that passed in May. There is inserted in the May amendment only a provision with reference to an heir-at-law or next of kin of a testator making a will admitted to probate within two years prior to the pas- sage of the act, causing the validity or invaliditj'^ of the probate to be determined. As the May amendment is general legisla- tion covering the whole subject-matter of antecedent legisla- tion as to the same subject-matter, the only inference would seem to be that the legislature intended the May enactment to be a complete substitute for that of March." Strength is lent to the contention that chapter 701 was in- tended to take the place of 10-1 from the fact that chapter 104 contains two or three verbal mistakes, as for example in pro- viding that " a copy of the final judgment shall be certified and transmitted hy the clerk of the Surrogate's Court," instead of " to the clerk," and it may well be that upon discovery of these errors, the section was brought up for amendment and the amendments incorporated into chapter 701 were then pre- sented to the legislature and adopted. It is clear, therefore, thsX Lewis v. Cook, 150 IST. Y. 163, for- bidding the maintaining of this action by one claiming in hos- tility to the will no longer controls, because both of the acts of 1897 added to the class of persons who could maintain the ac- tion, " any persons interested as heir-at-law or next of kin or otherwise in any estate.^' So that it is plain that the legisla- ture must have intended to make a change which would give to the heir-at-law as such, and independently of his interest or 524 surrogates' courts. lack of interest under the will, the right to sue which, prior to the amendment, he did not possess. Reid v. Curtin, sujpra, at page 548. See also Wells v. -Betts, supra, at page 118. This latter case passed also upon the provision of the amend- ment limiting it to wills admitted to probate " within two years prior to the passage of this act." The act was passed JVIaj 22, 1897, and the will in suit probated February 14, 1898. Lan- don, J., observes : " A literal reading might restrict the remedial provision in behalf of persons interested in the estate disposed of by the will or attempted to be disposed of, to such wills and codicils as were admitted to probate during the two years prior to May 22, 1897, but such a narrow construction would, no doubt, impute to the legislature an intention contrary to the fact. That intent, doubtless, was to give the act a retroactive effect for the two years prior to its passage. The final para- graph of the section provides that ' the action brought as herein provided shall be commenced within two years after the will or codicil has been admitted to probate.' " The limitation of two years certainly extends to wills ad- mitted to probate after the passage of the act, and there seems to be no doubt tliat the limitation was intended to apply in like manner to wills admitted to probate before its passage." It seems unnecessary to discuss, in view of this amendment, such cases as Wallace v. Payne, 9 App. Div. 34 ; 14 App. Div. 579 ; Seagrist v. Sigrist, 20 App. Div. 336, inasmuch as they dealt with the situation developed by the decision in Lewis V. Cooh, 150 N. Y. 168. § 13. Proceedings under section 2653a. — The directions of section 2653a as now amended as to who should be parties to the action and as to the manner in which the action must be tried, are so explicit as to require little discussion. Attention may be called however to one or two points. For example it has been held that a temporary injunction may be granted, re- straining the executors under the will, the validity of the pro- bate of which is sought to be determined under this section, from conveying, disposing of, delivering or incumbering any of the property mentioned in the will during the pendency of the action. HawJce v. Ilawhe, 74 Hun, 370. And in this case it was held that as the real property amounted to more than sufficient to afford abundant security for the share which the plaintiff would be entitled to if he succeeded in having the EEVOCATION OP PEOBATE. 525 will adjudged to be invalid, the injunction should be modified so as to restrict its restraining effect to the real property only. It has also been held that the provisions of this section, as to filing the summons and complaint in the oSice of the clerk of the court in which the action is begun, and as to the prompt certifying by the clerk to the clerk of the Surrogate's Court, where the will was probated, the fact that an action to deter- mine the validity of the probate of a will has been commenced, and as to the subsequent transmission by the Surrogate to the court in which the action has been begun of a copy of the will, testimony, and all papers relating thereto with a copy of the decree of probate duly attached together and certified under the seal of the court, Avere directory merely ; that the acts re- quired were not jurisdictional and that it was error to dismiss the complaint upon the ground that these provisions had not been complied with. Johnson v. Cochrane, No. 2, 91 Hun, 165. And Brown, P. J., said (at page 16S) that none of these acts required by the section were jurisdictional and none of them were required to be set forth in the complaint, and that the motion was not properly made at the trial, and had no relation to any of the issues raised by the pleadings. " If the statute had not been complied with, the motion should have been addressed to the special term to have the omission cor- rected." It has also been held {Johnson v. Cochrane, No. i, 91 Hun, 163), that the effect of the provision in section 2653a, to wit: "The issue in such action shall be confined to the question, whether the writing produced is or is not the last will of the testator," etc., limited the court in the exercise of its ordinary powers so that it was without power to appoint a receiver after final judgment to preserve the real property pending an ap- peal. The court says at page 165, " Such power can be exer- cised only in cases where the property is the direct subject of the action, and where the judgment to be granted will act upon the specific property. . . . The subject of this action was the validity of a will .... and while the judgment is conclusive as to the title to the real and personal property of the testator, it does not deal with or relate to the possession of any specific property of which the decedent died seized, and the plaintiff could not, under any process that could be issued 526 SUEROGATES' COUBTS. to enforce the judgment, obtain possession of the real estate in question." And Brown, P. J., adds : " The effect of the judg- ment upon the. rights of the parties is to leave them in the same situation they would have occupied if the decedent had died intestate. The title of the property passes to the heirs- at-law, and possession must be recovered in the proper form of action for the recovery of the possession of real estate. Neither can the land be sold under the judgment in this action and the proceeds distributed." In Matter of Beck, 6 App. Div. 211, 216, Judge Oullen called attention to the practical operation of section 2653a of the Code. The appeal was from a decree of the Surrogate's Court of Kings County admitting a will to probate. Judge Cullen says : " We think it proper to call the attention of the parties to the consideration, whether it is now worth while to prosecute such appeals as the present one. By section 2653a of the Code of Civil Procedure (added in 1892), any person interested in a will may cause the validity of the probate thereof to be determined by a jury, in an action brought in the Supreme Court for that purpose. Should we reverse the decree of the Surrogate on the questions of fact in this case, the only relief we could grant the appellants would be to direct the trial of the issues by a jury (§ 2588, Code). This relief or review the parties can obtain as a matter of right, under the section of the Code first cited, without an appeal. In fact, it can still be had in this case, as two years have not elapsed since the decree admitting the will to probate. It would seem that now an appeal from a decree of. the Surrogate, probating a will, is only profitable where the appeal is based solely on questions of law." It has also been held that one who has elected to take under the provisions of a will, is estopped from maintaining an action under this section. Kats v. Schnaier, 87 Hun, 343. § 14. Same subject. — Ordinarily, the burden of proof is upon the party propounding a will, but section 2653a places the burden upon the party who contests the validity of the will of establishing the testamentary incapacity of the testator or other reason of invalidity. Ddbie v. Armstrong, 160 N. Y. 584, 590. The probate of the will by the Surrogate is ma.de pri7na facie evidence of its due execution and validity. Thus it is clear that, if one claiming in hostility to the will REVOCATION OF PROBATE. 527 brings an action under the section, as now amended, to deter- mine such invalidit}"-, it is for the defendants, claiming that the will is valid, to open and close. They accordingly offer in evi- dence the will in probate and rest {Hagan v. Sone, 68 App. Div. 60) ; whereupon the plaintiff sustains the burden of proof formerly laid upon the defendants contesting the validity of the will. It is for the court to say whether a contestant, be he plaintiff or defendant, has adduced sufficient evidence to warrant the submission of the case to the jury. Dohie v. Armstrong, at page 594. The court may direct a verdict, Ibid., and see Cook v. WhiU, -13 App. Div. 388 ; HawTce v. Rawke, 146 IST. Y. 366 ; Hagan v. Sone, supra. The general rule that the party upon whom rests the burden of proof has the right to open is thus changed by virtue of the express provision of the statute by which the decree of the probate is made prima facie evidence of the due attestation, execution and delivery of the will, and imposes, therefore, upon the party attacking it, the burden of proving that the instru- ment is not the last will and testament of the decedent. Ibid. § 15. Form of verdict It is clear from the entire section that this is an action in rem. That is, the purpose of the statute is to determine finally whether the writing in question is or is not the last will of the testator, and thus to enable those interested, either under the will or in the estate, to have the question set at rest. Delmar v. Delmar, 65 App. Div. 582, 584. The plaintiff seeking to avoid a will cannot by defaulting upon the trial, deprive the defendant of his right to affirmative relief, because the answer does not contain a counterclaim. The defendant's rights in such case are given by the statute ; and if the answer prays for the relief provided by the section, the court may, upon such default, direct a verdict in favor of the defendant and against the plaintiff, sustaining the will and with the injunctive relief permitted by the section. Ibid. In this case it was held proper also that an extra allowance be granted to the defendant within the sound discretion of the trial justice. It should be noticed that for purposes of a possible appeal, the case should be submitted to the jury on specific questions framed according to the character of the objections to the valid- ity of the will. Even if a general verdict be entered in favor of 528 eUEROGATES' COUBTS. the parties seeking to invalidate the instrument, the Appellate Court may hold that as a verdict may have been rendered on any one of the grounds upon which the will was assailed, it should not be permitted to stand if any of these grounds was insufficient to nullify the instrument. Buchanan v. Belsey, 65 App. Div. 68, 60. CHAPTER YII. PROBATE OF HEIRSHIP. § 1. Probate of heirship. — The somewhat valueless and rarely resorted to practice of establishing the heirship of the heirs of an intestate is the subject of article 3, of title 3, of chapter 18 of the Code, being sections 2654 to 2659, both in- clusive. The remedy is seldom resorted to, chiefly because of its inconclusiveness, since a petition to vacate or modify a decree establishing the right of inheritance of the petitioner, may be presented to the Surrogate's Court, at any time within ten years after the decree has been made ; and it is in addition a proceeding which the Surrogate is required to dismiss in case the heirship which the petitioner desires to establish and his interest or share in the decedent's real property is put in issue and contested. § 2. The application. — ^The application to establish the right of inheritance of a person claiming to be an heir of a person dying, seized in fee of real property within the State, either wholly intestate or without having devised his real property to specific persons, must be made to the Surrogate's Court, (a) which has acquired jurisdiction of the estate, or, (J) if there is no such court, to the court of the county where the real property or any part thereof is situated. Section 2654 provides as follows : Where a person, seized in fee of real property within the state, dies intestate, or without having devised his real prop- erty to specific persons, his heirs, or any of them, or any per- son deriving title from or through such heirs, or any of them, may present to the surrogate's court which has acquired ju- risdiction of the estate, or, if no surrogate's court has acquired such jurisdiction, then to the surrogate's court of the county where the real property, or any part thereof, is situated, a written petition, duly verified, describing the real property, setting forth the facts upon which the jurisdiction of the court depends, and the interest or share of the petitioner, 34 (529) 530 SUEKOGATES' COURTS. and of each other heir of the decedent, in the real property, and praying for a decree establishing the right of inheritance thereto, and that all the heirs of the decedent may be cited to attend the probate of that right. Upon the presentation of such a petition, the surrogate must issue a citation accord- ingly. § 3654, Code Civil Proc. The provisions of this section clearly imply, that this appli- cation may be made, regardless of whether application for let- ters testamentary or letters of administration are pending, so long as the will, under which letters are being sought, does not specifically devise the property in question as contemplated bj' the section. It is manifest that proceedings under this article are likely to be taken only as incidental to other proceedings and for the purpose of securing a judicial determination amounting to presumptive evidence of the facts adjudged in the decree. The proceedings would be of value, in enabling one seeking to bring an action involving title to real property, to specify all the persons having an interest or right therein by means of this proceeding. The amendment to section 2654, made in 1892, permits " any person deriving title from or through the heirs of the intestate," to make this application. This article provides a speedy and inexpensive method of as- certaining these facts, and while doubtless affording no protec- tion to any one relying upon the adjudication as against per- sons whose rights as heirs might not be discussed or discovered in the proceeding, nevertheless has, in the few occasions in which it has been resorted to, sufficed to meet the particular exigencies involved. The reports appear to contain no adjudications upon these sections of the Code, in which respect they may therefore be said to enjoy an enviable notoriety. The provision by which the proceeding dies the moment contest is made, explains the entire absence of appeals from the few decrees made under this article which are recorded in the offices of the Surrogates of this State. § 3. The petition.— The petition to initiate these proceed- ings should be substantially in the following form : PKOBATE OF HEIRSHIP. 681 Surrogate's Court, County of Petition under In the Mattel- of the Probate' 2654, C. C. P. of Heirship of claim- ing to be an Heir of ' late of Deceased. To the Surrogate's Court of the County of The petition of of respectfully shows to this court as follows : I. That your petitioner resides in and is years of age and is one of the heirs-at- law (or if petitioner is a person deriving title from or through an heir, state the fact) of late of deceased. II. That said departed this life on the day of 18 seized in fee of real property within this state situated in and described as follows (here insert description as in a deed) . III. And your petitioner further shows on in- formation and belief that said deceased, left no will devising his real property to specific persons, and no Surrogate's Court has acquired jurisdiction of his estate ; and that the above described real property (or some part thereof) is situated within this county {if juidsdiction of the estate has already been acquired by any Sur- rogate's Court to which court in that event the ap- plication must be made, say instead, e. g. . that on the day of proceedings were commenced in this court on petition of for letters of administration of the goods, chattels and credits of said deceased, and citation duly issued thereon whereby this court has ac- quired jurisdiction of the estate of said decedent) . IV. And your petitioner further shows that he is interested in the said real property of the decedent being entitled, as your petitioner is in- formed and verily believes, to a -^^ share thereof under the statute of descent and distribution being the (state relationship to decedent) of the said deceased. 632 SUKKOGATES COtTETS. V. And your petitioner further shows, upon information and belief, that all the other heirs of the decedent entitled to share in his said real property so far as they are known or can be as- certained by your petitioner are as follows : Name. Age. Residence. Kelationship. Wherefore, your petitioner prays for a decree of this- court establishing your petitioner's right of inheritance in the property above described, and that a citation issue directed to all the heirs of the decedent to attend the probate of that right. (Date.) (Signature.) (Verification.) § 4. The citation. Citation ; appearance of persons interested. The citation must set forth the name of the decedent and of the petitioner, the interest or share which the petitioner claims, and a brief description of the real property. Any heir of the decedent, who has not been cited, may neverthe- less appear at the hearing, and thereby make himself a party to the special proceeding. But this section does not affect a right or interest of such a person, unless he becomes a party. § 2655, Code Civil Proc. The form of the citation should be substantially as folloAvs : The People of the State of New York To A. B., C. D., and E. F., heirs of late of deceased, send Greeting : Whereas of has lately applied to our Surrogate's Court of the county of to have his right of inheritance in the real prop- erty of late of deceased, situated in and bounded and described as follows PROBATE OF HEIRSHIP. 533 (he insert brief description of the real prop- erty). Now, therefore, you and each of you are hereby cited personally to appear before our said Surrogate at his otfice in on the day of 18 at o'clock in the noon of that day, then and there to attend the probate of heirship of the heirs of said deceased, in the real property aforesaid. § 5. Extent of the inquiry. — Section 2656 regulates the na- ture and extent of the inquiry to be made by the Surrogate and the facts to be covered by the decree. Upon the return of the citation, the surrogate must hear the allegations and proofs of the parties. If it appears that there is a contest, respecting the heirship of a party, or re- specting the share to which a party is entitled, as an heir of the decedent, the surrogate must dismiss the proceedings. If there is no such contest, he must inquire into the facts and circumstances of the case. The petitioner must estab- lish, by satisfactory evidence, the fact of the decedent's death ; the place of his residence at the time of his death ; his intestacy, either generally or as to the real property in question ; tlie number of heirs entitled to inherit the property in question ; the name, age, residence and relationship to the decedent of each, and the interest or share of each in the property. The surrogate, where these facts are established, must make a decree, describing the property and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree. § 3656, Code Civil Proc. The decree should be substantially as follows : Surrogate's Court Caption. Present : Hon. Decree under Surrogate. § 2666, C. C. P. Ti^.je |. On reading and filing the petition of 534 StTREOGATEs' COURTS. of one of the heirs-at-law of late of deceased, praying for a decree estab- lishing the right of inheritance of the heirs of said decedent in the real property within the state of which he died seized in fee, together with due proof of the service of the citation is- sued thereon upon all the heirs of the decedent to whom it was directed and (here note the ap- pearances upon the hearing) , and there being no contest respecting the heirship of any party or the share to which any party is entitled as an heir of the decedent ; and the Surrogate having inquired into the facts and circumstances of the case and the petitioner having established by satisfactory evidence (a) The fact of the decedent's death on the day of 18 (b) The place of his residence at the time of his death in in the state of (c) His intestacy (or his intestacy as to the real property described in the petition). (d) The number of heirs entitled to inherit the property' in question as (four) . (e) The name, age, residence and relationship to the decedent of each as follows : Name. Age. Eesidbnce. Relationship. (/) The interest or share of each in the prop- erty, as follows : it is now, on motion of attorney for the said petitioner, Ordered, Adjudged and Decreed, that the said late of deceased, died on the day of seized in fee of the following real property situated in the State of New York and bounded and described as follows : (here give PKOBATE OF HEIRSHIP. 535 description) that the said left no will (or will devising his said real property to specific persons) ; and it is further Ordered, Adjudged and Decreed, that the right of inheritance of and the heirs of said deceased, has been estab- lished to the satisfaction of the Surrogate in iic- cordance with the facts above recited and that said heirs above named are severally entitled to the following interests or shares in such prop- erty, to wit : That C. D., E. F., G. H., and I. K., the chil- dren of said decedent, are entitled severally to one undivided fourth part or share of such real property. (Signature.) Surrogate. It is manifest that the decree, which can only be made where there is no contest, being to all intents and purposes a decree upon consent, will not award costs to any of the parties as against any of the others. § 6. Effect of decree. — Practically the only object of this proceeding, namely, to get presumptive evidence of the facts established thereby, is provided for by section 2657 which is as follows : Decree to be recorded ; effect thereof. An exemplified copy of a decree, made as prescribed in the last section, and of the proofs taken thereupon, may be re- corded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when the exemplifications are so recorded, the decree, or the record thereof, is presumptive evidence of the facts so de- clared to be established thereby. § 3657, Code Civil Proc. § 7. Petition to vacate or modify the decree. Any person, other than a party to a special proceeding, instituted as prescribed in this article, or the heir, devisee, or assignee of such a party, may, at any time within ten years •^36 STTEROGATES' COURTS. after a decree establishing the right of inheritance is made therein, present to the court a written petition, duly verified, showing that he has a right, title, or interest in the real prop- erty, or a part thereof, which is injuriously affected by the decree ; stating that the decree is erroneous in some material particular, specified therein; and praying that the decree may be set aside or modified in that particular, and that all the persons, whose heirship was established by the decree, may be cited to show cause, why the prayer of the petition should not be granted. If an heir has since died, or has con- veyed the share or interest so established, by a deed duly re- corded in the county, the petition must state that fact ; and must pray that the persons, who have succeeded to his inter- est, may be also cited. Upon the presentation of such a petition, the surrogate must issue a citation accordingly. § 3658, Code Civil Proc. This section, the provisions of which may be available any time within 10 years after the decree has been made, has un- doubtedly operated to dissuade practitioners from resorting to the provisions of this article except incidentally. However, it must appear upon an application to vacate or modify the decree, that the applicant's interest is : (a) Injuriously affected by the decree : (J) That the decree is erroneous, in some material specified part. Upon an application, therefore, to vacate or modify such a decree, the Surrogate has the usual preliminary jurisdiction to determine whether the applicant has " a right, title, or interest in the real property, or a part thereof " or that such right, title, or interest is injuriously affected by the decree ; and then if upon the hearing the decree is proved erroneous, it may be vacated or set aside. That the error must be shown to be material is ap- parent from the provisions of section 2659, which is as follows : Petition to vacate or Tnodify decree ; when granted. Where a petition is presented as prescribed in the last sec- tion, and it appears, upon the hearing, that, if the petitioner, or his ancestor, testator, or grantor, had been a party to the special proceeding, the decree or a part thereof could not have been legally made, as prescribed in this article, the sur- rogate must vacate or modify the decree accordingly. An PROBATE OF HEIESHIP. 637 exemplified copy of the decree or order, so vacating or mod- ifying tlie original decree, may be recorded in the office of any clerk or register, where a copy of the original decree was recorded. § 3659, Code Civil Proc. It is clear from this section that the error must be such that had the attention of the court been called to it in the original proceedings, the decree could have been legally made in the form in which it was made. CHAPTEE VIII. THE CONSTRUCTION OF WILLS. § 1. The Surrogate's right to construe wills. — The power of a Surrogate to construe wills is derived from two sections of the Code. The only express power given is by virtue of sec- tion 2624, which is as follows : Validity and construction of testamentary provisions. But if a party expressly puts in issue, before the surrogate, the validity, construction, or effect of any disposition of per- sonal property, contained in the will of a resident of the state, executed within the state, the surrogate must determine the question upon rendering a decree ; unless the decree refuses to admit the will to probate, by reason of a failure to prove any of the matters specified in the last section. § 2624, Code Civil Proc. It will be noted from this section, that the right which it con- fers is limited to making a determination upon : {a) The validity, construction or effect, {h) Of a disposition of personal property, (c) In a will executed within the State, (d) By a resident of the State. The incidental power of the Surrogate is derived from the provisions of section 2472 of the Code of Civil Procedure, which provides, that the Surrogate has jurisdiction " to direct and control the conduct, and settle the accounts of executors, administrators and testamentary trustees. ... To enforce the payment of debts and legacies, the distribution of the estate of .decedents, and the payment or delivery b}' executors, adminis- trators and testamentary trustees, of money or other property in their possession, belonging to the estate. ... To administer justice in all matters relating to the affairs of decedents accord- ing to the provisions of the statutes relating thereto." And in section 2481 it is provided, among other things, that " the Sur- rogate may exercise such incidental powers as are necessary (538) THE CONSTETJCTION OF WILLS. 539 to carry into effect the powers expressly conferred." The Sur- rogate has jurisdiction over the settlement of accounts of ex- ecutors and administrators; and in section 2743 it is provided, that, " when an account is judicially settled, as prescribed in this article, and any part of the estate remains, and is ready to be distributed to the creditors, legatees, next of kin, husband or wife of the decedent, or their assigns, the decree must direct the payment and distribution thereof to the person so entitled, according to their respective rights." As incident to the duty thus cast upon the Surrogate, he must have jurisdiction to con- strue wills, as far as needful, at least to determine to whom legacies shall be paid ; and this, it is believed, is a power which the Surrogates of this State have always exercised. . . . They possessed such a power under the provisions of the Revised Stat- utes before the Code of Civil Procedure, and it was clearly not the intention of the Code to narrow or diminish the jurisdiction of Surrogates, but rather to enlarge it. See Matter of Ver- plancJc, 91 N. Y. 439, 449. § 2. The right of construction a limited one. — It is very clear then that the Surrogate has now no general jurisdiction in the construction of wills. It is equally clear that on account- ings and in decreeing distribution Surrogates have exercised the power to construe testamentary dispositions of property under the broad grant of powers incidental to those conferred by section 2472, 0. C. P. and formerly involved in section 71, 2 R. S. 95. There have been many cases in the Court of Appeals on appeal from decisions of Surrogates on final accountings which involve the interpretation and consti'uctionof wills and the determina- tion of which involved and recognized the power of the Surro- gate to construe a will when necessary to such accounting and distribution. See Mggs v. Oragg, 89 E". Y. 480, 492, citing Stagg v. Jackson, 1 N. Y. 206 ; iV. Y. Institution, etc., v. IIow^s Exrs., 10 id. 84; Parsons v. Lyman, 20 id. 103; McNaugJdon V. MoNaughton, 34 id. 201 ; Bascom v. Albertson, 34 id. 584; Whitson V. Whitson, 53 id. 479 ; Cushman v. Rorton, 59 id. 149 ; Hoppock V. Tticker, id. 202 ; Teed v. Morton, 90 id. 502 ; Law- rence V. Lindsay, 68 id. 108 ; Luce v. Dunham, 69 id. 36 ; Wheeler v. Buthven, 74 id. 428 ; 30 Am. Rep. 315 ; Ferrer v. Pyne, 81 N. Y. 281. And the Court of Appeals held {Gar- loch V. Vandervort, 128 N. Y. 374, 378), " Though a judicial 6-10 StJEROGATES' COURTS. officer with limited and prescribed jurisdiction and powers, yet it is not open to question that in a proceeding before him, hav- ing for its object the settlement of an executor's accounts and to obtain a decree directing the distribution of the fund in bis hands, and with all the parties in interest present, the Surrogate may construe the provisions of the will and determine the mean- ing and validity of them, whenever such a determination is nec- essary in order to make his decree as to distribution. Such a jurisdiction is, of course, not general ; but it is one which is incidental to his office, and which flows clearly from the au- thority conferred upon him by the statute. See section 2472 of the Code of Civil Procedure. " Subdivisions 3, i and 5 of the section of the Code cited would have little meaning and force, if such a judicial exercise of the Surrogate's authority were not impliedly granted." See also Purdy v. Hayt, 92 N". Y. 446, and Cahil v. Eussel, 140 N". Y. 402 ; Matter of Bolton, 149 N. Y. 257 ; Baldwin v. Smith, 3 App. Div. 341 ; Matter of Young, 17 Misc. 680, 684. § 3. Exercise of the express power to construe.— The lan- guage of section 2624 above quoted is unambiguous. There is no existing provision of law giving the Surrogate authority upon probate to inquire into the validity of a devise of real estate. Matter of Will of Merriam , 136 N. Y. 58, 59 ; Prive V. Foucher, 3 Dera. 339 ; Matter of Sehweigert, 17 Misc. 186, 193. In 1870 (chapter 359, Laws of 1870), power was given to the Surrogate of the county of New York, which the Surrogates in the State at large did not possess, to pass upon and determine the true construction, validity and legal effect of any disposition contained in a will of real or personal estate. The provision was as follows : " In d^ny proceeding before the said Surrogate (that is before the Surrogate of the county of New York) to prove the last will and testament of any deceased person, as a will of real or personal estate, in case the validity of any of the dispositions contained in such will is contested, or their con- struction or legal effect are called in question by any of the heirs or next of kin of the deceased, or any legatee or devisee named in the will, the Surrogate shall have the same power and jurisdiction as is now vested in and exercised by the Su- preme Court, to pass upon and determine the true construction, validity and legal effect thereof." Section 2624 is now substituted for this section of chap- THE COiSSTEUCTION OF WILLS. 641 tor 359 of the Laws of 1870 as appears from the annotations in Throop's Code, where he says under section 2624 : " This section has been taken from L. 1870, chap. 359, sec- tion 11, which confers such a power upon the Surrogate of the city and county of New York. It has been so formed as to con- fine its application to a strictly domestic will, .... and to a will of personal property .... As thus a7nended, the Tpronsion has been extended to all Surrogates' Courts." Since the adoption, therefore, of section 2624, Surrogates throughout the State have power to construe wills in probate cases provided they are strictly domestic wills of personal prop- erty. "We have in another connection noted the limitation which Judge Kollins {Jones v. Hamersley, 4 Dera. 427) laid down as to what persons were entitled to insist that the court should exercise the power possessed by it under section 2624. The Surrogate held that no one bad a right to raise acadeuiic issues under this section, and that the Surrogate would not exercise the power except at the instance of a party whose actual rights under the will would be affected one way or another by the determination. And so where Surrogates have been called upon to exercise this express power they have limited them- selves or been limited by the Appellate Court to the clear intent of the section. And in a recent case {Matter of Eohertson, 23 Misc. 450, 452) it has been held that an executor was not such a party as is contemplated by the section. Surrogate Ingalsbe interpreting section 2624, says, " under the reading of this clause it is claimed that Mr. Keid (the executor) can present this issue, for he is a party to the proceeding. But he is one of the pro- ponents. He is not a legatee or next of kin. His primary duty is to see that the will is probated, and not that it is declared invalid either in whole or in part. He has no interest in the estate except as an executor of the will." And the Surrogate adds (page 453) : " It would seem on general principles of interpretation that no person should be entitled to an adju- dication under this section as to the validity of a will, unless he claims some interest under it, in the personalty be- queathed, or, that by reason of some invalid disposition of such personalty, he is entitled to a share of the same under the statute of distributions. . . . Mr. Eeid occupies neither of those positions. . . . He has no such interest as to enable 542 STJREOGATES' COURTS him to invoke the jurisdiction of this court under section 2624." Surrogate Sherman in In re MarciaVs Estate, 15 N. Y. Supp. 89, derived in an elaborate opinion a jurisdiction in Surrogates' Courts to give construction to wills on probate relating to both real and personal property. He derived his conclusion from section 1866, providing for an action to determine the validity, construction, or effect under the laws of the State of a testa- mentary disposition of real property situated within the State, the provision being as follows : " This section does not apply to a case where the question in controversy is determined by the decree of the Surrogate's Court duly rendered upon allegations for the purpose as pre- scribed in article 1, of title 3, of chapter 18, of this act, where the plaintiff was duly cited in the special proceeding in the Surrogate's Court before the commencement of the action." Section 2624 is certainly contained in article 1, of title 3, of chapter 18. But the language of section 2624 is as certainly explicit. The decision in the Marcial case does not appeal' to have been followed or approved except by the same Surro- gate in a case decided in the same year {In re SmitKs Estate^ 18 N. Y. Supp. 174), where he remarks, " It has been held thnt sections 2622, 2623, 2627, 2629, 2481, subdivision 11, and 2482, give Surrogates' Courts authority to construe wills on probate relating to real estate." To this proposition he cites the Mar- cial case and Matter of Look, 5 iSf. Y. Supp. 50, affirmed with- out opinion in 125 N. Y. 762. But upon examination the latter case decided by the same Surrogate seems to be a con- struction of a bequest and not of a devise and its aifirmance in the Appellate Courts does not appear to have involved the extreme principle to support which it is cited. It doubtless, however, does seem anomalous that the Surrogates should be denied the right to exercise a jurisdiction for which their judicial experience ought especially to fit them; and if those seeking the oflfice of Surrogate were required by law to have the same preliminary professional experience as is expected in the case of a justice of the Supreme Court, it might not prove unwise to extend the jurisdiction of Surrogates' Courts in this respect so as to make their determination on questions of tes- tamentary construction conclusive ; although it might be nec- essary still to continue the provisions of the Code in regard THE C0NSTRT7CTI0N OP WILLS. 543 to the partial conclusive effect otherwise of decrees admitting to probate wills of real property in respect of questions as to which it is proper to preserve for parties their right to a trial by jury in an action. See Cooley v. McElmeel, 149 N. Y. 228, 237. § 4 Same subject. — If the intent of the Marcial case above referred to, was merely to hold that the fact that a will pur- ported to dispose of real property as well as of personal, does not divest the Surrogate of jurisdiction, it would undoubtedly embody the correct rule ; but whatever the provisions of the will the construction by the Surrogate is hrutwm fulmen as to any devise of real property. It is undoubtedly true that devises disposing of real property, and bequests disposing of personal property, raay be precisely similar in their wording, and the de- termination by the Surrogate, that the bequest of personal prop- erty is invalid for whatever reason, would naturally, if his reasoning were sound and his conclusions correct, be applicable to the devises ; but practically it can have no such effect under the limitations imposed upon the Surrogate's jurisdiction ; and this principle is carried to this extent, that where the bequests and devises are not clearly distinct, or distinguishable, one from the other, the Surrogate will not have power to construe. Thus, where there is no disposition of personal property except as it is connected with the disposition of real estate so that it would be impossible to separate the disposition of the personal prop- erty from that of the real estate and they are essentially con- nected and not separable, the Surrogate is without power to construe. See Matter of Shrader, 63 Hun, 63, where Macom- ber, J., says, " We are of opinion, under section 2624 of the Code, and under the common-law limitation of the power of the Surrogate's Court, that the Surrogate has no jurisdiction to make a construction of this will, or pass upon the validity of any of its parts, because there was no disposition of personal property independent of and separable from the disposition of the real estate." When therefore a will is a will of real and personal property, and the factum of the will is duly established, and the bequests and devises are clearly separable, the Surrogate may construe the former. See Matter of Bogart, 43 App. Div. 583, 586 ; Matter of Austin, 35 App. Div. 278. The effect of his exer- cise of this power in such a case has been stated by Surrogate 644 STJEROGATES' COURTS. North in the Lampson case, 22 Misc. 198, 201, where he ob- serves : " Upon the hearing, the contest was abandoned so far as the questions of capacity and undue influence were con- cerned, and the contestants are now in court solely with re- spect to tbe vaUdity of the bequests last referred to. " Upon this question only Mrs. Brooks, the aunt, is directly interested, for the reason that the statute gives to the Surro- gate's Court no jurisdictioQ to determine the validity of any devise of real estate. The result of this, as all parties concede, is that the will must be admitted to probate and letters testa- mentary issued to the executors in the manner provided for by the will. In case the Courts shall decide the bequests to Yale valid, such decision will, although indirectly, effectually dispose of the validity of the devise, since the same principle would apply in the disposition of the real estate as in the case of per- sonal property. Should the provisions for the university be held upon appeal from this decision to be invalid, the heirs-at- law will have their appropriate remedy to gain possession of the real estate, and such remedy will be unaffected by the fact that the will has been admitted to probate." Surrogate Coffin summarized the rule laid down in the Shrader case {Matter of Will of Morgenstern, 9 Misc. 198, 200), Avhere he said that a Surrogate had no power to construe a will em- bracing both real and personal property, where its provisions were, " so inseparably connected and hlended as to prevent a con- struction as to one species of property without involving the other." This rule will not be extended to exclude jurisdiction where the exercise of such power by the Surrogate as to the validity of a bequest does not necessarily by reason of such a blending as Surrogate Coffin described involve real estate. See Matter of Vomers, 113 N. Y. 569, 573, reversing 45 Hun, 418. And whatever the effect of his decree may be, into which is incor- porated his decision, whether as to the personal property or as to the parties to the proceeding interested therein, those inter- ested in the real property are not concluded thereby but may pursue their remedies in the Supreme Court in regard to the same in the manner provided by law, the effect of the probate decree being limited by section 2627 above discussed. See Corse V. Chapman, 153 IST. Y. 466, 475 ; Gooley v. McElmeel, 149 ]Sr. Y. 228, Attention is called to the important rule No. 5, THE CONSTRUCTION OF WILLS. 545 adopted in the Surrogate's Court of the County of New York, which embodies a wise principle, and provides a reasonable and necessary safeguard. The rule is as follows : Wherever a party shall put in issue on probate the validity, construction, or effect of any disposition of personal property under section 2624 of the Code, if it shall appear that all per- sons interested in such construction are not before the court, the determination of such question shall be suspended until such persons shall be made parties ; and the executor named in the will shall not be held to represent the legatees therein for the purpose of such construction. This rule was laid down- by Surrogate Calvin {Carrin v. Fanning, 13 Hun, 458, at page 465) in an opinion adopted by the General Term of the First Department, where he says : " I entertain no doubt of my authority, as an incident to the per- formance of that duty, to bring in all the parties interested for that purpose ; but I am equally clear in the opinion, that, when a case has been submitted to me without such parties being called in, I should refuse to exercise the jurisdiction, except so far as it may become necessary for the purpose of pass- ing upon the probate of the instrument in question, as a will of real and personal property, until such parties shall be brought in." § 5. Summary statement. — The decisions in respect to the exercise of the express power granted by section 2624, may be thus briefly summarized : 1. It is limited to dispositions of personal property. See Matter of Schrader, 63 Hun, 36 ; Seaman v. Whitehead, 78 N. Y. 308. 2. The provisions to be construed must be contained in the will of a resident of the State, executed within the State, for a Surrogate has no jurisdiction in probate proceedings, to pass upon the validity of dispositions of personal property, contained in a will executed without the limits of this State. Tiers v. Tiers, 2 Dem. 209. See also Smith v. Ceni/ral Trust Co., 12 App. Div. 278. 3. The usual rules as to what constitutes residence will govi ern so far as they are not limited by express statutory' pro- visions. For example, the provisions of section 2611, which provide that the validity of the execution of a will, or the va- lidity, or construction of any provision contained therein, is 35 546 StJREOGATES' COURTS. not affected by a change of the testator's residence made since the execution of the will. 4r. This express power can be exercised in probate proceed- ings only, and proceedings to revoke probate are not to be in- cluded thereunder. Bevan v. Cooper, 72 N. Y. 317 ; Matter of Ellis, 1 Connoly, 206. 5. The issue must be raised by a party to the proceedings, that is to say, a person duly cited whether by original or sup- plemental citation. See § 2624, C. C. P. ; Jones v. Hamersley, 4 Dem. 427. 6. And the power will be exercised only at the instance of a person whose rights will be affected by the adjudication of the Surrogate {Matter of Robertson, 23 Misc. 450, 452 ; Matter of Campbell, 88 Hun, 374), such as, a widow (Matter of Vowers 113 N. Y. 569), or a residuary legatee, or any heir entitled to a share in the estate, in the case of the entire or partial invalidity of the will. See MoKeown v. Officer, etc., 25 N". Y. St. Kep. 319. See also Harris v. Am. Bible Society, 4 Abb. N. S. 421. 7. The question of construction must be raised by " expressly putting in issue " the validity of the provision ; that is to say, the party must file an answer with distinct and specific allega- tions, that certain provisions of the will are illegal and void ; this raises an express issue, and calls for the determination of the Surrogate. See Matter of Fuller, 20 JST. Y. St. Eep. 352. See Matter of Will of Eelem'an, 126 N. Y. 73, 78. It was ex- pressly held by Surrogate EoUins, that no such issue was raised as required by section 2624, where, upon probate, the testatrix's husband filed a petition, asserting his claim and title to the property of which she died possessed, and asking that no dis- position of such property be made as expressed in the will offered for probate. The learned Surrogate ignored this paper in admitting the will to probate. McClure v. Wooley, 1 Dem. 574. 8. And the Surrogate is confined to the distinct issue raised by such answer and cannot pass upon any questions other than those involving the validity, construction, or legal effect of the dispositions above described. Thus for example in Matter of Walker, 136 N. Y. 20, 24, the Court of Appeals held that the investigation which the Surrogate was empowered to make under section 2624 was limited to questions arising out of the terms of the will, and expressly denied him the right to pass THE CONSTRUCTION OP WILLS. 547 upon the questions submitted to him for adjudication, as to the ownership by the testator of certain funds, as to his indebted- ness to one of the heirs in a given amount, and other like ques- tions. And it has been held that the mere fact, that the parties had consented to this improper exercise of jurisdiction could not confer jurisdiction. Matter of Walker, supra, at page 29, citing Chemung Canal Bank v. Judson, 8 N. Y . 254. § 6. Exercise of implied power to construe. — Much of the confusion which has appeared in the cases involving the right of the Surrogate to construe wills, has arisen from the failure to emphasize the clear distinctions made in the Code. The express power is limited to probate proceedings, and is subject to the limitations already noted. The incidental power (see section 2 above) is a power which must be exercised as any other incidental power, that is to say, only in so far as it is necessary in order to carry out the express power to which it is incidental. See Baldwin v. Smith, 3 App. Div. 350, 353 ; Garlock v. Vandevort, 128 IST. Y. 374 ; Purdy v. Hayt, 92 N. Y. 446; Matter of Merriam, 136 N. Y. 58. It is clear from what has been already stated, that the power to construe a will upon accounting and decreeing distribution, is necessarily incident to the exercise of those express powei's. The Court of Appeals has extended this incidental power of the Surrogate to construe wills, to cases arising under the pi'o- visions of the Collateral Inheritance Tax Law. Matter of Ull- mann, 137 N. Y. 403, 407. This power. Judge O'Brien says in his opinion, is incidental to that provision of the statute, under which the tax was assessed which provides, that, " The Surro- gate's Court in the county of which the decedent at the time of his death was a resident shall have jurisdiction to hear and de- termine all questions in relation to the tax arising under the ' provisions of this act . . . . " and he accordingly observes : " The Surrogate must decide lohether any property of a deceased person has passed- to another under a will or under the laws of intestacy, before he can perform the duty imposed upon him. It may sometimes happen that the property of the deceased passes in both ways. The fact that there is a will, and that it has been admitted to probate, does not necessarily determine the ownership or the transmission of the property. When the Surrogate looks into the will some of its dispositions may be so clearly void as to warrant him in holding that nothing has 548 surrogates' courts. passed by virtue of them, but that the property embraced therein has passed to heirs or next of kin under the statutes of descent or distribution. In the numerous cases that have been passed upon by this court recently, arising under the statute, we have held that the Surrogate was clothed with power, and that it was his duty to decide questions arising under wills or under the statutes quite as intricate and important as those arising out of the residuary clause of the will in this case (citing In re Mc- P her son, 104 N. Y. 306 ; In re Enston, 113 id. lli; In re SherweU, 125 id. 379 ; In re Romaine, 127 id. 80 ; In re Stewart, 131 id . 274; In re Wolfe, 137 id. 205 ; In re Prime, 136 id. 347 : In re Swift, 137 id. 77). " In the settlement of the accounts of executors and the dis- tribution of the personal estate under a will, the Surrogate is empowered to determine the validity of testamentary provi- sions under statutes that are not more explicit or comprehen- sive than the one now under consideration. Code, §§ 2472, 2481, 2743 ; In re Verplanch, 91 N. Y. 439; Purdy v. Ilayt, 92 id. 446 ; Riggs v. Cragg, 89 id. 479 ; OarlocTc v. Vandevort, 128 id. 378 ; In re Wagner, 119 id. 32 ; In re Cager, 111 id. 343. " The jurisdiction conferred by the statute upon the Surro- gate to hear and decide all questions in relation to the tax im- posed by its provisions upon pei'sons to whom property has passed from a decedent is, we think, broad enough to warrant the Surrogate in holding, in a case like this, that the property which is the subject of the tax has not passed to the legatees or devisees under the will, but the heirs-at-law or next of kin." However it was held by the Court of Appeals in the Fayer- weather case {Amherst College v. Ritch, 151 N. Y. 322, 343), that the adjudication by a Surrogate in transfer tax proceed- ings, in this connection, must be limited with reference to the object for which it is made, and merely amounts to an adjudi- cation, that, for the purpose of taxation under the act in ques- tion, a certain amount of property actually passed to specific persons by virtue of the will ; and Judge Yann writing the opinion of the court says, that the Surrogate's legitimate in- quiry necessarily stopped at that point ; that, " the adjudication was necessarily limited to the subject of taxation, and if con- clusive at all, was not conclusive upon the rights of the parties arising from matters outside of the will," citing Matter of Wolfe, 137 N. Y. 205, 211 ; MatUr of Ullmann, 137 IST. Y. 403, 407. THE CONSTKUCTION OF WILLS. 549 § 7. Same subject,— The exercise of this implied power to construe wills, has been held to be proper in any proceeding where it may become necessary in order to enable the Surro- gate to carry out powers expressly conferred on him. See Kelsey v. Van Camp, 3 Dem. 530, 534. See also Matter of Owens, 33 N. Y. Supp. 422. Subject to the limitations indi- cated, this is unquestionably true. These limitations, apart from express statutory provisions, such for example as those in section 2624, have been stated by the Court of Appeals in the form of a general rule ( Washbon v. Cope, 144 IST. Y. 287, 295), where Peckham, J., observes : " As a general rule, the Surrogate has no jurisdiction to con- strue the provisions of a will excepting' so far as it may be necessary for him to do so in order that he may properly per- form some other duty which has been imposed upon him by law. There is no general and inherent power vested in him or in his court to construe devises or bequests as a distinct and inde- pendent branch of his or its jurisdiction. Even a court of equity vested with general jurisdiction over equitable subjects has no such inherent power as that, and its only power to construe the provisions of a will is based upon, and is incident to, its juris- diction over trusts. Mellen v. Mellen, 139 N. Y. 210, and cases cited in the opinion of Andrews, Ch. J. The statute itself pro- vides for the effect of a judicial settlement of the accounts of the executors. See §§ 2742 and 2743, Code Civ. Proo." See, as to effect of decree improperly made, Pfiester v. Writer, 33 Misc. 701. Sometimes it may be necessary for the Surrogate to construe the provisions of the will in order that upon the final account- ing of the executors thereof he may decree distribution to those who, by the provisions of the Avill, are entitled to any portion of the proceeds remaining undistributed, or where distribution by the executors has already been made, may, upon their ac- counting, determine whether they have or have not, erroneously and improperly made distribution of some of the estate, and if they have, the Surrogate may hold them liable in their accounts. But generally it is for the purpose of determining the correct- ness of the accounts of the executors or of decreeing the proper distribution of the estate, that this jurisdiction to construe the terms of a will becomes necessary, and may be exercised for the 550 STJEEOGATES' COUETS. purpose of carrying out the jurisdiction actually conferred upon the Surrogate. There is no question as to the Surrogate's power within the limitations noted, to construe a will upon an accounting for the purpose of properly determining questions necessarily arising thereon. Oarlock v. Vandevort, 128 N. Y. 374, 378, citing Matter of VerplancTe, 91 IST. Y. 439, 449 ; Eiggs v. Cragg, 89 N. Y. 179. See Matter of Young, 17 Misc. 680, 684 ; Will of Havens, 8 Misc. 574 ; Matter of Metcalf 6 Misc. 524 ; Matter of French, 52 Hun, 303. And it must be noted that, if the Sur- rogate has rightly assumed jurisdiction, and undertaken to con- strue a provision in a will, in a proper case, the jurisdiction of the Surrogate being equal to and concurrent with that of the Supreme Court, the rule is applicable that the Surrogate's Court, as the tribunal which first obtains jurisdiction of the subject-matter and of the persons, retains and exercises the jurisdiction to the exclusion of the Supreme Court, that is to say, that while it is not an exclusive jurisdiction on the part of the Surrogate to start with, the Supreme Court will not when he has rightly assumed jurisdiction in a given case enter- tain an action involving the same questions brought in the Su- preme Court. Schuehle v. Reiman, 86 N. Y. 270 ; Oarlock v. Yandevort, supra, page 379. If the construction of a will is necessary to determine ques- tions arising on the accounting, jurisdiction to construe at- taches as incident to the proceedings, and it is not only proper for the Surrogate to entertain jurisdiction to construe the will but it will be held error if he refuses to do so. See Purdy v. Hayt, 92 X. Y. 445, 446, 450. § 8. Same subject — The power of the Surrogate to construe the provisions of a will and determine their meaning and valid- ity, in order to make a decree of distribution, after judicially settling the accounts of an executor, or administrator with the will annexed, is thus very clear under the decisions. See Matter of Yandevort, 8 App. Div. 341, 353, citing Purdy v. Hayt, 92 N. Y. 446; Garlock v. Yandevort, 128 N. Y. 374; Cahill V. Russell, 140 N. Y. 402; Matter of Bolton, 146 K Y. 257; Baldwin v. Smith, 3 App. Div. 350. "Whether this ac- counting by the executor is voluntary or compulsory, makes no difference as to the power of the Surrogate (see Estate of Met- calf , 6 Misc. 524) ; while the Surrogate has power to make THE CONSTRUCTION OF WILLS. 651 such construction on settling the accounts of an administrator with the will annexed, he has not that power upon the original application for such letters of administration. See Matter of Smith, 18 K Y. Supp. 174, 175, Du Bois v. Brown, 1 Dem. 317, and Matter of Thompson., 5 Dem. 117. This power to construe a will for the purpose of making the distribution, requires a passing reference to section 2743, which permits a Surrogate upon the judicial settlement of an account, where the validity of the debt, claim, or distributive share, is admitted, or has been established upon the accounting, or other proceeding in the Surrogate's Court, or other court of competent jurisdiction, to determine by the decree, to whom it is payable, the sum to be paid by reason thereof and other questions concerning the same. This section as will be noted later on contains the sole statutory authority whereunder the Surrogate has jurisdiction to determine disputes as to third parties' demands ; but incidental to this power it may be absolutely essential for the Surrogate to construe the will for the purpose of determining to whom legacies shall be paid. See Yerplanck's Estate, 91 N. Y. 439 ; Tappen v. M. E. Church, 3 Dem. 187, 191. Where the right to alegacy depends upon a question of construction, it must be determined before a decree for distribution can be made, and the Surrogate has jurisdiction to determine such construction as incident to the authority to make the distribution. See Riggs v. Qragg, 89 N. Y. 479. § 9. When exercise of incidental power denied. — The ex- ercise of this incidental power has also been denied in the fol- lowing cases : Upon an application to compel payment of a legacy under section 2722 (former section 2717). Ranlt v. Camp, 3 Dem. 278, Rollins, Surrogate. And the Court of Appeals {Riggs v. Cragg, supra, 480, 492) has iutimated, that, the reason for a denial of the power in such a case was that, the application for payment of a legacy was in the nature of a special accounting to which all parties interested in the State are not necessarily cited, and that it would not be proper for the Surrogate to pro- ceed to a determination which might affect the rights of other legatees, or persons interested in the estate, without the pres- ence of all such parties to be affected by such adjudication, and that therefore the final accounting, when the right of the Surro- gate in this regard was fully recognized, was the proper occa- sion for the exercise of the power to construe. 552 STJRROGATES' COURTS. The power has also been denied upon an application requir- ing an executor to show cause why he should not make, file, and return an inventory and an account of his proceedings under the statute, and in default thereof to show cause why he should be attached and removed from office. Wilde v. Smith, 2 Dem. 93, 96. Where the Surrogate however does exercise the power to construe the will, this construction should be embodied in some directory clause of the decree, otherwise, as was held by the Court of Appeals ( Washbonv. Cope, 144 N. Y. 287, 296), his de- cision will be nothing more than an opinion as to the proper construction of the will upon which he bases no action and makes no decree. § 10. Construction by the Surrogate. — It is impracticable in a work of this character to discuss at length the rules of law governing the Surrogate as a judicial officer in exercis- ing his power to construe wills. This subject has been elab- orately discussed in text-books devoted specially to the sub- ject. The Surrogate is of course bound by the same rules of construction and interpretation, which would govern the Supreme Court in the exercise of similar power, with the limitation, however, that in the exercise of the power as inci- dental and necessary to effectively exercise an express power conferred upon him by law, the incidental power should be exercised only to the extent of enabling him to perform the express power ; this is illustrated by the limitation placed by the Court of Appeals upon the right of the Surrogate to con- strue a will in proceedings under the transfer tax law. See section 6, sujn-a, where the adjudication of the Surrogate was held to be necessarily limited to the subject of taxation, and to have a conclusive effect only, in so far as that matter was in- volved. However, an effort has been made to condense and set in compact form with adequate references the principal rules of construction as they have been formulated and developed by the courts. This is shown here as elsewhere throughout this work largely in the very words of the cases. § 11. Multiplicity and confusion of precedents. — It would be difficult to iind in any other branch of our law, a more strik- ing confusion than exists among the vast multitude of prece- dents with respect to the construction and interpretation of THE CONSTRUCTION OF WILLS. 553 wills. To a very large extent this confusion may be considered as the natural result of the policy of the law in refusing to sub- ject this class of instruments to as rigid rules of construction as are applied to deeds and other instruments affecting the property of living persons, wherein we find a more precise ter- minology and forms of expression, whose well-established mean- ing is clearly adhered to by the courts. " To lay down any positive and definite rules of universal application in the in- terpretation of wills, must continue to be as it has been, a task, if not utterly hopeless, at least of extraordinary difficulty. The unavoidable imperfections of human language, the obscure and often inconsistent expressions of intention, and the utter inability of the human mind to foresee the possible combina- tion of events, must forever afford an ample field for doubt and discussion, as long as testators are at liberty to frame their wills in their own way, without being tied down to any tech- nical and formal language." Mr. Justice Story in Sisson v. Sedbury, 1 Sumn. 235. § 12. Testator's intention tlie primary guide. — Where a will is the subject of construction, it is the manifest intention of the testator and not any rule of construction which is to govern, when they come in conflict. Matter of James, 146 K Y. 78 ; Miller v. Gilbert, 144 JST. Y. 68, 70 ; Delaney v. Van Aulen, 84 W. T. 16. Any other rule " is subordinate to this primary canon of construction, that the intent, to be collected from the whole will, must prevail." Matter of Brown, 154 K Y. 313 ; GoeM v. Wolf, 113 N". Y. 405. Where the language is plain and the intention of the testa- tor is clearly expressed, the court will not look into extraneous circumstances in giving its construction. Ghamplin v. Champ- lin, 58 K Y. 620. (Full report in 1 Sheld. 355.) Thus, in such a case it will not inquire into testator's motives {Howland V. Union Theological Seminary, 5 N. Y. 193), nor into the rea- sonableness of the provisions if they violate no principle of law or morality. Bolton v. DePeyster, 25 Barb. 539 ; Watson v. Donnelly, 28 Barb. 653. So also, when the language is unskillful or inaccurate, but the intent can be clearly collected from the writing, it is the duty of the court to give effect to that intent. Masterson V. Townsend, 123 N. Y. 458; Roe v. Vingut, 117 N. Y. 204; Blimen v. Seymour, 88 N. Y. 469. 554 surrogates' courts. § 13. Of the canons of constrnction. — It follows from what has been said that the courts will strive as far as possible to carry out the real objects of the testator, limiting themselves, however, to the intention deducible from the words of the will, but in no cases exceeding or amplifying such intention. "What- ever rules may be formulated as guides in testamentary con- struction are of limited scope and validity, and are applicable onlj'' to particular words, phrases and testamentary provisions, in the absence of a contrary intention appearing in the will. Canons of construction may, therefore, be viewed as means of collecting a testator's intention, where there is a doubt or un- certainty as to the meaning of any expression or provision contained in his will. Without them the courts would be free to resort to conjectural interpretations, unfettered by any fixed principles or established precedents, and a latitude would thus be given to the judicial imagination, inconsistent with the stability of the law. GEITEEAL RULES OF COTfSTElJCTION. I. Intention is to be collected from the whole will taken to- gether and not from any detached portions alone, and such a construction given, if possible, as to form one consistent whole. Morris v. Beyea, 13 N. Y. 273 ; Roe v. Vingut, 117 iST. Y. 204, 212 ; Taggart v. Murray, 53 N. Y. 236 ; Trash v. Sturges, 170 N. Y. 482, 496 ; Kelley v. Hogan, 71 App. Div. 343. This rule is extended to cover, (1) introductory terms {Clark V. Jacobs, 56 How. Pr. 519 ; Youngs v. Youngs, 45 N. Y. 254) ; (2) a codicil taken with the will as part of the same in- strument ( Wesoott v. Cady, 5 Johns. Ch. 334 ; Crosier v. Bray, 120 N. Y. 366, 374) ; (3) those portions admittedly void or in- eflBcient to dispose of property. Tilden v. Green, 130 N. Y. 29, 55 ; Morton v. Woodbury, 153 N. Y. 243 ; Kiah v. Grenier, 56 N. Y. 220. II. Where the intention is left uncertain or doubtful, that construction should be adopted which is nearest in accord with public policy and with the law. Ckwatal v. Sohreiner, 148 N. Y. 683 ; Oroohe v. County of Kings, 97 N. Y. 421 ; Manice v. Manice, 43 K Y. 305 ; Hopkins v. Kent, 145 N. Y. 363. III. Where a particular intent is inconsistent with a general intent, the latter is subordinated to the former. Sjpofford v. THE CONSTRUCTION OF WILLS. 555 Pearsall, 138 N. Y. 57, 68 ; Hoey v. Oilroy, 129 N. Y. 132, 138. IV. An intent, inferable from the language of a particular clause of a will, may be qualified or changed by other clauses thereof, evincing a different intent. Hoppook v. Tucker, 59 N. Y. 202 ; Moffet v. Elmendorf, 152 N. Y. 475, 484. V. Where two clauses are so inconsistent and irreconcilable that they cannot possibly stand together, the one that is pos- terior in position will prevail, as indicating a subsequent in- tention. Van Nostrand v. Moore, 52 N. Y. 12; Yechten v. Keator, 63 N. Y. 52 \ Sweet v. Chase, 2 IST. Y. 79. This rule, of course, will not apply when the later provision is void. Austin v. Oakes, 117 N. Y. 577. It has frequently been criticized as not founded on a very satisfactory reason and is not to be blindly followed unless the court can find nothing else to aid it in ascertaining the testator's intention. Ogshury V. Ogshury, 45 Hun, 388 ; Covenhoven v. Shuler, 2 Paige, Ch. 123. VI. "Where of several provisions in a will, some are lawful and others unlawful, each being complete in itself, and in- dependent of and separable from the others, the legal pro- visions will be preserved, if not inconsistent with the manifest intent of the testator, and if they would not lead to a result contrary to the purpose of the will or work injustice among the beneficiaries. Tilden v. Green, 130 N. Y. 29 ; Van Schuy- ver V. Mulford, 59 K Y. 426 ; Kalisk v. Kalish, 166 N. Y. 368. But where material provisions of a will are illegal and can- not be separated from the other parts, without defeating the tes- tator's general intention, the legal provisions must fail with the illegal. Hafner v. Hafner, 62 App. Div. 316 ; Benedict V. Welh, 98 ]Sr. Y. 460 ; Harris v. Clark, 7 N. Y. 242. VII. Such a construction as will prevent partial intestacy will be favored, the law presuming that a testator did not intend to die intestate as to any of his propertj^ Schiilt v. Moll, 132 N. Y. 122 ; Eelly v. Hogan, 71 App. Div. 343 ; Byrnes v. Baer, 86 N . Y. 218. VIII. The law favors that construction which permits de- scent to remain in the line of ancestral blood. Knowlton v. At- kins, 134 N. Y. 313, 321 ; Quinn v. Hardenbrooh, 54 N. Y. 83 ; Matter of Boyce, 37 Misc. 146. 556 SURKOGATEB COUKTS. IX. Express words, or necessary implication, are requisite in order to disinherit an heir-at-law. Haxtun v. Corse, 2 Barb. Ch. 521 ; Chamberlain v. Taylor, 105 N. Y. 185 ; Scott v. Guernsey, 48 N. Y. 106. Mere words of disinheritance, without devise to others, are insufficient to eifect that purpose. Gallagher \. CrooTts, 132 N. Y. 338, 342, and cases cited ; Lynes v. Townsend, 33 N. Y. 558, 561. X. The law favors equality among children of the testator and their issue, in the distribution of estates, and in cases of doubtful construction it selects that which would lead to such a result. Stokes v. Weston, 142 N. Y. 433 ; Matter of Miller, 18 App. Div. 211, aflf'd on opinion below, 155 IST. Y. 646 ; Brown's Estate, 93 N. Y. 295 ; Button v. Button, 57 App. Div. 297. XI. Provisions for the benefit of a wife are construed libe- rally in her favor. Mofat v. Elmendorf, 152 N. Y. 475 ; Thur- ier V. Chambers, 66 N. Y. 42, 48 ; Stimson v. Vrooman, 99 JST. Y. 74, 80. XII. The law favors the vesting of estates at the earliest time. Stokes v. Weston, supra ; Byrnes v. Stilwell, 103 N. Y. 453 ; Trash v. Sturges, 170 N. Y. 482 ; Campbell v. Beaumont, 91 K Y. 464. XIII. Where an interest is given or an estate conveyed in one clause, it cannot be cut down or taken away by raising a doubt from other clauses, but only by express words or clear implication. Freeynan\. Coit, 96 N. Y. 63 ; Banser v. Banser, 156 N. Y. 429 ; Trask v. Sturges, 170 N. Y. 482, 492. XIV. A will speaks as of the date of the testator's death. Brundage v. Brundage, 60 N. Y. 544 ; Lynes v. Townsend, 33 ]Sr. Y. 558, 564. But when a testator refers to an actually existing state of things, his language should be understood as referring to the date of the will and not that of his death. Rogers v. Rogers, 153 JST. Y. 343 and cases cited. XV. An expressed intention is a codicil to make a change in a will in one particular negatives, by implication, an intention to alter it in any other respect. Redfield v. Redfield, 126 N. Y. 466 ; Wetmore v. Parker, 52 IST. Y. 450. § 14. Interpretation of words and phrases. — In addition to the foregoing general rules the courts have enunciated a number THE CONSTBUCTIOJS OF WILLS. 557 of rules of lesser scope, applicable to individual words and phrases. Of these, the more important are the following : I. Words in general are to be taken in their plain, usual and primary sense, unless a clear intention to use them in another sense can be collected, and that sense ascertained from the instrument. Carpenter v. Carpenter, 2 Dera. 534 ; Harvey v. Olmstead, 1 N. Y. 483, 489 ; Matter of Woodwa/rd, 117 N. Y. 522 ; Wylie v. Loohwood, 86 N. Y. 291. II. Technical words are presumed to have been used in their technical sense, but when it appears from the context or from extraneous facts, that the testator used them in their common and popular sense, this overcomes the presumption. Lawton V. Corlies, 127 N. Y. 100 ; Luce v. Dunham, 69 N. Y. 36 ; Cushman v. Horton, 59 N. Y. 151. III. The natural sense in which words are used, always prevails over both punctuation and capitals. Kinkele v. Wil- son, 151 N. Y. 269 ; Arcularius v. Sweet, 25 Barb. 406. lY. Rules of grammar are considered and will be followed, excepting when they contravene the clear intendment. Staats V. Stoats, 11 Johns. 337 ; Abbey v. Ay mar, 3 Dem. 400 ; T>6 Notteback v. Astor, 13 N". Y. 98. V. Words may be transposed, rejected or supplied so that the will may express the intention of the testator {Starr v. Starr, 132 K Y. 154, 158 ; Phillips v. Bavies, 92 N". Y. 199), but not so as to devise a new scheme or to make a new will. Tilden v. Geen, 130 K Y. 29. See, as to words transposed. Wager v. Wager, 96 N. Y. 164, 172 ; Covenhoven v. Shuler, 2 Paige's Ch. 122. Words rejected, Walter v. Ham, 68 App. Div. 381 ; Benjamin v. Welsh, 73 Hun, 371. Words supplied, Roseboo7n v. Roseboom, 81 JS". Y. 356 ; Mumford v. Rochester, 4 Eedf. 451 ; Matter of Schwei- gert, 17 Misc. 186. Words changed, Roome v. Phillips, 24 N. Y. 463 ; Miller v. Gilbert, 144 N. Y. 68, 74. VI. Where certain things named are followed by a phrase which need not but might be construed to include other things, it will be confined to articles of the same general character as those enumerated. Matter of Reynolds, 124 JST. Y. 388, 397. YII. Precatory words and expressions, accompanying a de- vise or a bequest ^r% prima facie obligatory, and create a trust, unless the intention is clearly apparent that they are to be re- garded as advisory or recommendatory only. B liven v. Sey- 558 SUKROGATES' COUKTS. mour, 88 N. Y. 469 ; Manice v. Manice, 43 N. Y. 305 ; Matter of Gardner, 140 IS'. Y. 123. VIII. Particular words or clauses may, in the light of other words or clauses, be so construed as to mean more or less than they import considered singly or by themselves. Freeman v. Coit, 96 N. Y. 63. IX. The consti'uction given to a word or phrase in one will is no positive criterion for construing the same expression oc- curring in another {Smith v. Bell, 6 Pet. 68, per Marshall, C, J.) ; and the same word may be construed in different senses in the same will. Morrow v. McMahon, 35 Misc. 348, construing "issue" variously as to their interest in income and principal of estate. § 15. Interpretation of particular words and phrases. — As may be readily inferred from the last rule above mentioned, there are a very large number of decisions defining the mean- ing of certain words and expressions as they are used in the particular instruments under consideration. In them, various shades of meaning, often widely divergent, will be found. But the same word or expression in different wills may require es- sentially different constructions ; so unless two wills can be found approximately identical, disposing of similar property under similar circumstances, such precedents lose much of their force. Convenient lists of adjudged cases, containing such verbal interpretations, will be found in the digests. § 16. Admissibility of extrinsic evidence. — When there is no ambiguity in a will, extrinsic evidence is inadmissible to show the testator's intention, for plain and unambiguous lan- guage leaves no room for construction. Bradhurst v. Field, 135 N. Y. 564 ; Savford v. Sanford, 58 N. Y. 69. It is only when the testator's meaning is doubtful, after a critical scrutiny and comparison of the several provisions of his will, that ex- ternal assistance may be accepted and collateral facts and sur- rounding circumstances may be inquired into, to elucidate what is uncertain, and assist in the construction of the instrument. Lefevre v. Lefevre, 59 N. Y. 434. In Mann v. Mann, 1 Johns. Ch. 231, which is often referred to as the leading New York case on this subject, the rule is stated by Chancellor Kent, as follows : " Parol evidence cannot be admitted to supply or con- tradict, enlarge or vary, the words of a will, nor to explain the intention of the testator, except in two specified cases : THE OONSTEUCTION OF "WILLS. 559 (1) where there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be described ; and (2) to re- but a resulting trust." While this rule has generally been followed, it may be remarked, in this connection that the dis- tinction between patent and latent ambiguities is no longer considered by the courts. In either case, where the instrument itself appears ambiguous or where collateral facts and circum- stances give rise to the ambiguity, the court will seek, by an inquiry into all the material facts, to place itself as nearly as possible in the position of the testator, when the will was made. Lefevrev. Lefevre, supra ; Fisk v. Hubbard, 21 Wend. 651, 659, opinion by Cowen, J., commenting on the rule of Lord Bacon, that " arribigiiitas patens is never holden by averment " and qualifying it. Extraneous circumstances may be considered in aid of the terms of the will. Hoyt v. Hoyt, 85 N. Y. 142, 146. The language of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of that language, and help to disclose the actual intention, may also be considered. McCorn v. MoOorn, 100 N. Y. 511, 513, citing LeFevre v. Tool, 84 N. Y. 95 ; Hoyt v. Hoyt, supra ; Scott v. Stebhins, 91 N. Y. 605. § 17. Evidence of intention. — The intent of the testator must be found in the will, either expressed or implied in its terms, or drawn by fair inference from other manifest inten- tions expressed in the will. Lippen v. Eldred, 2 Barb. 130. Extrinsic evidence of whatever kind, whether it bear directly or indirectly on the testator's intention, must be considered as merely subsidiary to the language of the instrument and re- ceived only as an aid in disclosing its real purpose. It cannot be used to put new language in the will, to the extent of in- terpolating a provision or materially qualifying its terms. Matter of Wells, 113 N. Y. 396 ; Stimson v. Vrooman, 99 N. Y. 74, 79; Armstrong v. Oalusha, 43 App. Div. 248, 262. Thus it may be stated as a general rule that declarations of a testator, before, contemporaneously with, or after the making of a will, are inadmissible to affect its construction. Williams V. Freeman, 88 K. Y. 561. And it has been held that parol evidence of the intention of a testator is not admissible to for- tify a legal presumption raised against the apparent intention, or to create a presumption contrary to the apparent inten- tion where no such presumption is raised by law. Reynolds 560 STJEEOGATES' COTTBTS. V. Robinson, 82 N". Y. 103. An apparent exception to this rule with respect to direct evidence of the testator's declara- tions of his intention is found in a class of cases where there are several persons or things to which the terms of the will might apply with equal certainty. In these cases, such evi- dence is received ; but its purpose then is not primarily to af- fect the intention, but to disclose, if possible, what the intention really is. Matter of Wheeler, 32 App. Div. 183, 187, aff'd 161 N. Y. 652 ; St. LuMs Home v. Ass'nfor Indigent Females, 52 N. Y. 191, 198 ; Gallup v. Wright, 61 How. Pr. 286. It seems also that when an attack upon the will is made by the intro- duction of extrinsic evidence to affect its construction or ap- pUcation, the scope of the defense is enlarged, and evidence of the testator's declarations may be given in rebuttal, in or- der to show that the intention is correctly expressed on the face of the will. Tillotson v. Race, 22 N. Y. 122; Matter of Wheeler, supra. % 18. Unattested writings and memoranda The statute which requires wills to be expressed in writing, attested in a prescribed form, precludes any other proof of them except the writing, and such facts and circumstances as are necessary to its intelligent reading. An unattested paper of a testamentary nature cannot be taken as part of the will, even though referred to by that instrument. Booth v. Baptist Church, 126 N. Y. 215, 247, and cases cited ; Vogel v. Lehritter, 139 N. Y. 223. It was held in Tonnele v. Hall, 4 N. Y. 140, that a map ap- pearing after the signature upon a will and which was referred to in the body of the will, did not require the signature to fol- low it in order to make it a part of the will. But it is to be observed that the will in that case was complete without such addition, the map being referred to merely to identify the sub- ject devised, and not as containing a testamentary provision. An interesting discussion of the law as to the incorporation of extrinsic writings in wills will be found in Dyer v. JErving, 2 Dem. 160, wherein the Surrogate summarizes his conclusions as follows : " First. That words of reference in a will will never suiiice to incorporate the contents of an extraneous paper, un- less it can be clearly shown, that at the time such will was executed, such paper was actually in existence. Second. That an extraneous paper produced as and for a paper so referred to in a will and shown to have been in existence when such THE CONSTRUCTION OF WILLS. 561 will was executed, may be adjudged to form part of such will and be admitted to probate as such, under these circumstances and no others, to wit: When, by satisfactory and conclusive evidence, it has been proved to be the selfsame paper which the testator by his words of reference designed to indicate." § 19. What may be shown by extrinsic evidence. — It may be stated as a broad and general rule that evidence which is admissible in explanation of a will may relate to every material fact, which will enable the court to ascertain the nature and qualities of the subject-matter of the instrument, and to identify the persons and things to which it refers. These may be con- sidered under the general heads of explication, referring to the reading of the verbal text of the will, and application, showing its applicability to the subject or the object of the devise or bequest. § 20. Explication. — If the instrument is written in a foreign language or in shorthand, a competent witness may translate it, and whatever is necessary to possess the court of an under- standing of the language or characters in which the will is written may be supplied by extrinsic evidence. Abb. Trial Ev. 2d ed. p. 169. A nickname or a name by reputation given by the testator and current in his family or neighborhood may be thus explained ; or terms with which, as a member of a particular trade or calling, the testator is familiar. In all such cases persons acquainted with the meaning of the words may be called as witnesses to translate or define them. Ryerss V. Wheeler, '2i'2i Wend. 148, and cases cited. So also obvious clerical errors appearing on the face of the will may be cor- rected {Dubois v. Hay, 35 N. Y. 162; Paige v. Bergih, 10 Paige's Ch. 140) ; and evidence aliunde is allowable to aid in determining the real name of a beneficiary in cases of misnomer. Leonard v. Damenport, 58 How. Pr. 384 ; Gallup v. Wright, 61 How. Pr. 286 ; Lefevre v. Lefevre, 59 JST. Y. 434. All such evidence is received, however, not for the purpose of showing the intent in the particular case, but in order to enable the court by inference from the facts thus established, to correctly read the will. It would appear that technical terms of known legal import present an exception to this general rule. They must have their legal effect, unless it is perfectly clear from the context that the testator did not mean to use them in their technical sense. Then they can only be construed in the light 36 562 surrogates' courts. of the other parts of the instrument. Rule II, ante, and cases cited ; Moore v. Lyons, 25 Wend. 119, 154 ; Campbell v. Baw- don, 18 N. Y. 412, 417. § 21. Application. — In applying the will the court may con- sider all the circumstances surrounding the testator when he made the will. Stimson v. Vroman, 99 N. Y. 74, 79 ; Wil- liams V. Jones, 166 N. Y. 522, 533. The intent thus existing, when ascertained, must have effect, and may not be varied by after-concurring events. While a will is in some sense ambula- tory as to the objects and subjects with which it deals, yet it is not ambulatory as to the meaning of the language used by the testator when he executed the will. Morris v. Sichley, 133 N. Y. 546. But in order to ascertain the intention and pur- pose existing at the time of the execution of the will, the court may inquire into situation of the testator's family and the nature and value of his estate {Bumpus v. Bumpus, 79 Hun, 526 ; Matter of Woodward's Will, 167 JST. Y. 28) ; his education and intelligence {Lytle v. Beveridge, 58 N. Y. 592) ; his business transactions {Tillotson v. Race, 22 N. Y. 122) ; his religious affiliations, his charitable benefactions and zeal for certain charitable agencies. Hornheok v. Am. Bible Society, 2 Sand. Ch. 133; Lefevre v. Lefevre, 59 N. Y. 434. In short, it may resort to extraneous evidence of such facts or circumstances as will enable it to identify the person sought to be designated or the property to which the language of the will is to be ap- plied. Thus a beneficiary need not be described by name, if any other designation or description be given, by which he can be clearly identified with the aid of parol evidence. Holines V. Mead, 52 N. Y. 332 ; Lefevre v. Lefevre, supra. Parol proof may in like manner be resorted to in order to identify property which is described in the will in such meagre, ambiguous or uncertain terms, that it cannot be exactly located. Ryerss v. Wheeler, 22 Wend. 148. But on the other hand, the courts are firm in excluding extrinsic evidence when it seeks to change or enlarge a specific and explicit designation of the property. Waugh V. Waugh, 28 N. Y. 94 ; Mann v. Mann, 1 Johns. Ch. 231. CHAPTEE IX. ESTABLISHING WILL BY ACTION. § 1. How a will may be proved outside the Surrogate's Court. — "Wills may be divided into three classes as regards the Surrogate's jurisdiction to grant letters testamentary under them. In the first class are the wiUs which may be proved in a Surrogate's Court. Such wills, it is prescribed by section 2611 include (a) A will of real or personal property executed as pre- scribed by the laws of the State. (J) A will of personal property executed without the State but within the United States, the Dominion of Canada, or the Kingdom of Great Britian and Ireland, as prescribed by the laws of the State or the country where it is or was executed. (o) Or a will of personal property executed by a person not a resident of this State according to the laws of his resi- dence. In the second class are wills lost or fraudulently destroyed in testator's lifetime upon their having been established as provided by sections 1865 or 2621. And in the third class are wills of personal property made by a person a non-resident at the time of executing it, or a non-resident at his death, the will being duly executed accord- ing to the laws of the State or country where it was executed, or of the State or country where the testator resided at the time of his death but not coming within the permissive pro- visions of section 2611 and consequently not provable before a Surrogate. There is a fourth kind, namely, wills of United States citi- zens dying while domiciled or resident, in the Kingdom of Great Britain and Ireland or any of its dependencies. Chap- ter 731, Laws, 1894, provides that if such will has been probated at the place of domicile and affects property in this State, it may be proved in a Surrogate's Court here on notice merely to the beneficiaries named in the will. (See ante, p. 333.) (563) 564 SUKROGATES' COUIITS. The foregoing proposition must be clearly understood to be limited to a statement of the Surrogate's right to issue letters testamentary. The jurisdiction in this regard is exclusively confined to the Surrogate's Court ; but, it will be noted that as to the three classes of wills above described a further differentia- tion can be made. As to the first the Surrogate has exclusive jurisdiction to admit the same to probate. As to the second (lost or fraudulently destroyed wills) the Surrogate has power to admit the same to probate under section 2621, in a case where a judgment establishing the will could be rendered by the Supreme Court as prescribed in section 1865. Thus the Supreme Court and the Surrogate's Court have concurrent jurisdiction, the one of the proceeding for probate, the other of the action to establish, but in this case the jurisdiction of the Supreme Courtis limited to entering the judgment establishing the will, while the issuing of letters thereupon remains with the Surrogate. See section 1864. As to the third case, the jurisdiction is exclusively com- mitted to the Supreme Court with the same limitation, to wit : that its power ceases with the entry of judgment, the letters testamentary issuing under section 1864 by the Surro- gate only. § 2. Establishing a will by action. — The jurisdiction of the Supreme Court over a civil action to establish a will is defined by section 1861 of the Code. This section is as follows: An action to procure a judgment, establishing a will, may be maintained by any person interested in the establishment thereof, in either of the following cases : 1. Where a will of real or personal property, or both, has been executed, in such a manner and under such circum- stances, that it might, under the laws of the state, be admitted to probate in a surrogate's court ; but the original will is in another state or country, under such circumstances that it cannot be obtained for that purpose ; or has been lost or de- stroyed, by accident or design, before it was duly proved and recorded within the state. 2. "Where a will of personal property, made by a person, who resided without the state, at the time of the execution thereof, or at the time of his death, has been duly executed, according to the laws of the state or country in which it was executed, or in which the testator resided at the time of his ESTABLISHING WILL BY ACTION. 566 death, and the case is not one, where the will can be admitted to probate in a surrogate's courts under the laws of the state. §3. Subdivision!. — Subdivisionl,it will be noted, requires for its full understanding, reference to section 2611, the provi- sions of which have been recited above, and quoted at page 332, ante. If it appears that the will is one coming within the pur- view of section 2611, and it appears in addition that the orig- inal will is in another state or country, and in addition that it cannot be obtained for the purpose of probate here by reason of its having been lost or destroyed by accident or design, a clear case would then be made for an action under subdivision 1. The wills, therefore, which could be established under this sub- division come under two classes : first, wills remaining in an- other jurisdiction so that they cannot be brought here for pro- bate. Second, lost or destroyed wills. The case covered by Laws, 1894, chap. 731 (quoted, ante, at page 333), would be an exception to the first class. In that case, though the will can- not be brought here, a copy, with consular certificate, together with the proofs similarly certified can be probated, and letters issued thereunder without resort to an action in the Supreme Court. § 4. Wills retained in another jurisdiction — The case of Younger v. Buffie, 28 Hun, 242, affirmed 94 N". Y. 535, illus- trates a case under that subdivision. The action was brought under this section, and the complaint averred that the testator, a United States consul in Spain, temporarily residing at Cadiz, but being an inhabitant of and domiciled in the county of Rich- mond and State of N"ew York, died on the 8th day of Novem- ber, 1880, in Cadiz, being possessed at the time of his death of personal property in the State of N"ew York. The plaintiff was a legatee under the will, which it was alleged had been exe- cuted in the city of Cadiz, signed, published, declared, and executed, before a notary and three witnesses, and containing similar allegations respecting the subsequent execution of a codicil to the will, a copy of which will and codicil were an- nexed to the complaint. The complaint further alleged that the original will and codicil were in the Spanish language, were duly executed in conformity with the Spanish law, and were actually on file among the archives of the notarial office of the city of Cadiz, from which they could not be removed for the 566 surrogates' courts. purpose of being admitted to probate under the laws of the State of New York, or for any other purpose whatsoever, by reason of the laws of Spain. This complaint was demurred to upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was overruled at a special terra, and the action of the special term affirmed at the General Term and in the Court of Appeals. The General Term held that the allegations of the complaint were broad enough to admit proof at the trial of all the sur- rounding circumstances required by our statutes, and that the will was one which could be admitted to probate in the Surrogate's Court if the circumstances that it could not be ob- tained for that purpose did not exist. And Davis, P. J., adds in his opinion (28 Hun, 245) : " That where such circumstance does exist, the Code expressly provides that the action may be maintained for the purpose of establishing the will," citing Russell V. Hartt, 13 N. Y. Weekly Digest, 309, January 6, 1882 ; Caulfield v. Sullivan, 85 N. Y. 158. In the Court of Appeals Judge Earl (95 N. Y. at page 540) also held that the will alleged was one provable in the Surrogate's Court of Kichmond County, but for the fact that it could not be pro- cured for that purpose and hence was a case under section 1861. It will be noted that the unquestionable jurisdiction of a Surrogate to grant probate of a will not actually produced before him except in the form of an exemplified copy thereof, provided that it is executed as prescribed in section 2611, is not interfered with by this section. Matter of De Lwplaine, 45 Hun, 225 ; Russell v. Hartt, 87 N. Y. 19 (see opinion of Judge Finch) ; Caulfield v. Sullivan, 85 N. Y. 153. But this section does not authorize the bringing of an action to prove and establish the will of a resident of another State which has been duly probated therein. This section is a re-enactment of sections 63, 64, 67 and 68 of title 1, chapter 6, part 2 of the Ee vised Statutes, by which it appears that the term " estab- lishing a will " means the same as proving a will, and such is the obvious meaning of the term as used in the section of the Code referred to, which has no relation to wills which have been duly proved. Article 7, of title 3, of chapter 18, of the Code of Civil Procedure provides a complete scheme for estab- lishing and giving effect within this State to wills duly pro- bated in other States. Clark v. Poor, 73 Hun, 143, 144. ESTABLISHING WILL BY AOTIOlt. 567 § 5. Lost or destroyed will.— (See ante, pages 35Y-363, which read in connection herewith.) Subdivision 1 provides that the action may be brought to establish a will which could have been admited to probate in a Surrogate's Court where it " has been lost or destroyed by accident or design before it was duly proved and recorded withia the State." In connec- tion with this, section 1865 provides as follows : « But the plaintiff is not entitled to a judgment, establish- ing a lost or destroyed will, as prescribed in this article, un- less the will was in existence, at the time of the testator's death, or was fraudulently destroyed in his lifetime ; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. It must be at the outset noted, that the provisions of this section which embody the former provisions of the Revised Statutes (2 E. S. 67, § 67&) do not affect the rule of evidence formerly obtaining and still obtaining in actions in which it might become necessary to prove a lost will or lost deed. The rule in such actions remains the same, namely, that such a lost will can be proved by a single credible witness. See Jack- son V. La Grange, 19 Johns. 386 ; Dan v. Brown, 4 Cowen, 483 ; Jackson v. Betts, 6 Cowen, 377. The additional requirement as to proof has been held to be limited to the proceeding or action contemplated by sec- tions 1865 and 2621, and the intent of the legislature has been said to be only to provide a rule of evidence applicable to the proceedings thereby authorized to prove and establish a lost or destroyed will ; and the rules of evidence in relation to proving the execution and contents of lost instruments, upon trials at law or in equity, remain unaffected; and parties acquiring rights under a lost or destroyed will, may establish those rights by the same kind of evidence as was allowed prior to the enact- ment providing for the probate of such wills. See Harris v. Harris, 26 N. Y. 433, 439, approved in Matter of Kennedy, 167 N. Y. 163, 172. (See § 7, below.) The importance of this distinction will be seen from the fact that it has been held that if parties bring a suit in which they seek to establish a will lost or destroyed, and are dismissed, 568 SUREOGATKS' COUKTS. they are not concluded by the dismissal of this suit from set- ting up and establishing their title, in another action involving their rights, by sufficient common-law evidence of the existence or fraudulent destruction of the will. See Harris v. Harris, supra. An action had been brought for the purpose of having a will proved as a lost and destroyed will; this action was duly tried and judgment entered therein dismissing the complaint. An action was subsequently brought for the partition of the real property which the plaintiff in the former action had claimed an interest in, by virtue of the alleged lost will; this interest was alleged in the answer in the partition suit. And the provisions or con tents of the will and the factum of the will were proved distinctly and clearly by one credible witness. The Court of Appeals held that the defendants were not con- cluded by the former decree from setting up this right and that the evidence was sufficient to prove as well the existence as the destruction and contents of the alleged will. See opin- ion of Wright, J., in Harris v. Harris, at page 437, ei seq. § 6. Procedure in the action. — The complaint in an action under section 1865 should contain distinct averments of all the necessary facts warranting the plaintiff in invoking the juris- diction of the court. (See below, pp. 572-574.) It has been dis- tinctly held that if the plaintiff is without knowledge sufficient to enable him to frame his complaint he is entitled to an order for the examination of the defendant to take his deposition for the purpose of enabling him to frame his complaint. Blatchford v. Paine, 24 A pp. Div. 140, 143. § 7. Nature of proof required. — Section 1865, it has been held, should be liberally construed. See Early v. Early, 5 Redf. 376, 380, following HooTc v. Pratt, 8 Hun, 102, 109 ; Will of Be Oront, 9 ¥. Y. Supp. 471, 473. Judge Beekman stated this rule {Kahn v. Hoes, 14 Misc. 63) with its proper limitations, as follows : "While the statutory provisions under which such an action is maintainable are remedial in their nature and benignant in their purpose, and should, therefore, be liberally construed and applied, still it is not to be forgotten that the law has in this State always exacted great particularity of proof in respect to testamentary acts and the observance of formalities intended to make the proof as nearly as may be a demonstration that the testator was capable and fully conscious of the nature of his act. ESTABLISHING WILL BY ACTION. 569 This extreme caution obviously arises from the essential privacy of the act itself, which does not become the subject of proof until the mouth of the chief actor is closed by death, and the consequent ease and safety vfiih which fraudulent wills might be concocted and maintained. As little as possible is left to the uncertainty of recollection or the operation of fraudulent design in the requirements that the will should be in writing, subscribed and published by the testator and authenticated by two witnesses, selected by him and subscribing their names in his presence in attestation of due execution. It will be seen that the chief value of these precautionary requirements rests upon the production of the document itself when rights are asserted under it, and that its absence opens the door to the uncertainties and fraudulent designs against which the statute was intended to provide. Experience, however, has demon- strated the necessity of providing for the cases where wills which had been duly executed were lost or fraudulently de- stroyed, and could not therefore, be produced for probate, and in order that the rigor of the statute should not defeat a duly executed testamentary act, or in its operation to prevent one kind of fraud work another, provision has been made for the establishment of wills where, through loss or destruction by accident or design, the paper cannot be produced. But in so doing the legislature has also sought in some measure to provide against the dangerous consequences imminent upon this relaxa- tion of the rule by prescribing a special quality of proof in such cases." After quoting section 1 86.5 of the Code of Civil Pro- cedure he continues as follows : " The burden of proof rests upon the plaintiff, and reason as well as the policy of the law demands that the proof should be clear and convincing, not only in respect to the provisions of the will, but as well that it was in existence at the time of the testa- tor's death. The plaintiff is confronted at the outset by the pre- sumption of revocation in which the law indulges where a will shown to have been made cannot be found after decease, a pre- sumption which he must overcome by evidence satisfactorily ac- counting for the absence of the paper upon some other theory." The provision of section 1865 as to proof by two credible witnesses is distinctly limited thereby to the provisions of the will. The other necessary facts can be proved by any compe- tent evidence. 570 SUEKOGATES' COUKTS. By " provisions of the will " is meant those which affect the disposition of property. Early v. Early, supra. But as to these the statute has been strictly construed to mean, that each of the witnesses must be able to testify to all of the disposing parts of the will, it will not suffice to prove one provision by two or more witnesses and another provision in the same way by others, nor can the proven declaration of its contents by the testator be regarded as of any weight. Mat- ter of Baser, 6 Dem. 31, 33, citing Collyer v. Collyer, 4 Dem. 53. And consequently the evidence of a witness who is shown not to have read the entire will or otherwise to have known all its provisions is of no appreciable value. Hid. See headnote and opinion at page 34. The Ruser case was peculiar in that counsel on both sides sought to cure the uncertainty in the testimony as to the con- tents of the will b}' stipulating its provisions ; this stipulation was very properly disregarded by the court. The words, " two credible witnesses," have apparentlj^ been construed further to mean, two independent witnesses each tes- tifying to the main facts and to all of such facts. Surrogate Lapham held that a witness who was merely a supporting wit- ness corroborating another witness who alone could be properly called an independent witness in regard to details of his testi- mony, was not one of such two credible witnesses as is con- templated by the section. Matter of Waldron, 19 Misc. 333, 337. The Surrogate observes, the two credible witnesses which the statute requires respecting the contents of a lost will need not necessarily have been witnesses also to the execution of the will. But it is reasonable to read the statute as meaning that they must both be able to speak of an actual will from personal knowledge and not of a possible will. ... If two reliable per- sons had become possessed of the contents without any part in the execution of the instrument, they might equally well con- stitute such witnesses. But could they be such witnesses if their knowledge of the contents of the instrument was limited to what they supposed or believed it contained only because somebody had told them that a draft they had seen of a will, had been executed thereafter and had become a will ? The Surrogate properly held that this was not sufficient, citing McNalVy v. Brown, 5 Redf. 372 ; Collyer v. Collyer, 4 Dem. 53 ; Sheridan v. Houghton, 6 Abb. N. C. 234. And the usual rule ESTABLISHING WILL BY ACTION. 67l as to credibility, of course, will obtain ; and if the will depends upon the plaintiff's testimony in whose favor the will is claimed to have been made, the court will subject his testimony to a most critical examination. Kalin v. Hoes, 14 Misc. 63, 67. This same rule, of course, applies where the existence of the will at the testator's death depends upon the same kind of tes- timony. Ibid. The facts as to the execution, the existence at the testator's death, or the fraudulent destruction, must all be clearly established to the satisfaction of the court althoijigh the only expressed limitation as to character of proof is in regard to the disposing provisions of the will. See Kerry v. Dimon, 37 N. Y. Supp. 92 ; Kahn v. Hoes, supra. This fact of existence at the testator's death is most impor- tant, for the presumption is a proper one and will usually be entertained that a will was destroyed by the testator animo revocandi, if the only facts shown are that the decedent made a will which was last seen in his possession or under his control, and which after his death cannot be found upon proper search. See Hard v. Ashley, 88 Hun, 103, 107, citing In re Florence, 2 Bradf. 281 ; Idley v. Brotun, 11 Wend. 227. The Court of Appeals in the Collyer case, 110 N. Y. 486, stated the rule as follows : " There is no direct proof that Mrs. Collyer destroyed her will ; but the proof that the will was not found after her death is sufficient proof that she de- stroyed it animo revocandi. When a will previously executed cannot be found after the death of the testator there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in place of positive proof. Belts V. JacJcson, 6 Wend. 173 ; Enapp v. Knapp, 10 N. Y. 276 ; Schultz V. Schtdtz, 35 id. 653; Hatch v. Sigman, 1 Dem. 519. He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to es- tablish intestacy had an opportunity to destroy the will. He must go further, and show by facts and circumstances that the will was actually, fraudulently destroyed. In Loxley v. Jach- son, 3 Phill. Eep. 126, the will was last seen in a small box in the bedroom of the deceased, but was not found after her death, and it was held that the presumption of law was that the tes- tatrix destroyed it animo reeovandi ; that the law did not pre- sume fraud, and that the burden of proof was on the party 572 surrogates' courts. claiming under the will. In Knapp v. Knapp, supra, it was held that proof that a will executed by a deceased person was said by him a month previous to his death to be in his posses- sion in a certain desk in his house, and that he was then very aged and feeble, that his housekeeper was a daughter having an interest adverse to the will and that the same could not be found on proper search three days after his death, is not suffi- cient evidence of its existence at the testator's death or of a fraudulent destruction in his lifetime, to authorize parol proof of its contents. The authorities are uniform, and no further citations are needed." In Hard v. Ashley, supra, being, however, an action for par- tition, Judge Ward observes (at page 105), " It is true that proof of a lost will is necessarily secondary, and the law accepts the best evidence that the nature of the case admits of as to its valid execution and contents, and in such a case as this the de- fense may establish the will by a single credible witness," cit- ing Harris v. Harris et al., 26 N. Y. 433, yet it muSt be shown that the will was executed with all the formalities required b\'^ the statute, and that the testator was of sound mind and under no restraint. § 8. Who may bring the proceeding — It is very clear from section 1861 that only a person interested in the estabMshlnent of a will may bring this action. See Matter of Hamersley, 7 K Y. St. Eep. 292. The Court of Appeals in Anderson v. Anderson, 112 N. Y. 104, held that a devisee of the legal estate in possession of the property devised could not maintain an action to establish the will against the heirs-at-law. See headnote at page 104. § 9. Fraudulent destruction. — Where the plaintiff relies upon fraudulent destruction of a will in the testator's lifetime, the evidence by which it is sought to establish such a destruc- tion must be substantially clear and convincing ; such a destruc- tion would be a crime, and a person should not be convicted of such an act upon suspicion or surmise. Hard v. Ashley, 88 Hun, 103, 107. See also Matter of Be Oroot, 2 Connoly, 210 ; Perry v. Perry, 21 JST. Y. Supp. 133. § 10. The complaint.— In view of the wide diversity of opinion among practitioners as to matter of form and allega- tions in pleading, it hardly seems necessary to suggest the form of a complaint in an action brought under section 1861. It is ESTABLISHING WILL BY ACTION. 573 merely necessary to lay stress upon the fact that the practi- tioner having determined whether the facts of the case bring him within subdivision 1 or subdivision 2 of the section, and that the plaintiff is a person interested in the establishment of the will sought to be established, should concisely allege every jurisdictional fact required by the particular subdivision. The following skeleton is suggested for a complaint under subdivision 1 : I. First. Allege the execution of a will of real or personal prop- erty, stating date, place and circumstances, of such execution, bearing in mind that they must be such as would sustain its probate in a Surrogate's Court in this State ; give also name of testator and allege his residence at the time of executing the will, as well as the time and place of his death, state what prop- erty whether real or personal belonged to the testator at his death, within the county in which the action is brought. Second. Allege that the will cannot be obtained for the pur- pose of probate in a Surrogate's Court, stating the circum-, stances why it cannot be so obtained. Third. Allege that the plaintiff is a person interested in the establishment of such will, showing his rights or claims, under the will, and if necessary state why it is necessary for him to bring the action. Fourth. Allege facts showing that the will is a live will, by allegations showing that it has never been revoked or canceled, either by act of the testator, or by operation of law. Fifth. Allege that the will has not yet been proved or ad- mitted to probate. II. Where the will sought to be established is lost or fraudu- lently destroyed, the allegations should be substantially as fol- lows : First. Allege the execution of the will describing it, stating facts sufficient as to the manner and circumstances of its exe- cution as would be necessary in a petition for its probate in a Surrogate's Court. Second. Give the name of the testator, allege his residence at the time of exeoution,and the fact of his death giving date and place. 574 surrogates' courts. Third. Allege the interest of the plaintiflf in the establish- ment of the will and his rights or claims thereunder. Fourth. Allege concisely the facts as to the loss or fraudu- lent destruction of the will. The words in subdivision 1 of section 1861, " has been lost or destroyed by accident or de- sign," are covered by the phrase " fraudulently destroyed," for the destruction of the will without the testator's consent or direction is, as to the testator, fraudulent, within the meaning of the statute whether such destruction were by accident or design. It is proper to add to this paragraph of the complaint a posi- tive allegation, that the will was not in fact revoked, canceled or annulled, by any act of the testator" or by operation of law. Fifth. Allege the failure to prove or to offer to prove the said will on the part of the executor claimed to have been named therein. The prayer for relief in either of these complaints will demand judgment that the will alleged in the complaint be established and proved as the last will of the testator named, and that the will be admitted to probate as a will of real or personal property or both. It is not essential that the prayer for relief should pray for the issuance of letters testamentary, for section 1863 provides, that the final judgment establishing the will must in a proper case, direct that an exemplified copy thereof be transmitted to the Surrogate having jurisdiction and be recorded in his oflBce, and further that letters testamentary or letters of administration with the will annexed be issued thereupon from the Surrogate's Court in the same manner and with like effect as upon a will duly proved in that court, but it is usual to insert in the prayer such a request, naming the executors to whom letters are prayed to be issued, and particularly if there is uncertainty as to the executor's name in the alleged lost or destroyed will, in which case the plaintiff may ask for letters of administration with the will annexed and should pray for their issuance " to the plain- tiff or to the person entitled thereto." See post, part lY, chap. II, § 8. § 11. Judgment — The provision, as to the form and con- tents of the judgment establishing the will, is contained in sec- tion 1862, which is as follows : ESTABLISHING "WILL BY ACTION. 576 If, in such an action, the facts necessary to establish the validity of the will, as prescribed in tlie last section, are sat- isfactorily proved, final judgment must be rendered, estab- lishing the will accordingly. But where the will of a person, who was a resident of the state at the time of his death, is established as prescribed in the last section, the judgment establishing it does not affect the construction or validity of any provision contained therein ; and such a question arising with respect to any provision, must be determined in the same action, or in another action or a special proceeding, as the case requires, as if the will was executed within the state. § 1863, Code Civil Proc. Where the parties to the action, who have appeared or have been duly summoned, include all the persons, who would be necessary parties to a special proceeding, in a Sur- rogate's Court for the probate of the same will and the grant of letters thereupon, if the circumstances were such that it could have been proved in a surrogate's court ; the final judg- ment, rendered as prescribed in the last section, must direct, that an exemplified copy thereof be transmitted to the Sur- rogate having jurisdiction, and be recorded in his office ; and that letters testamentary, or letters of administration with the will annexed, be issued thereupon from this court, in the same manner, and with like effect, as upon a will duly proved in that court. § 1863, Code Civil Proc. A copy of the will so established, or, if it is lost or de- stroyed, the substance thereof, must be incorporated into a final judgment, rendered as prescribed in the last section; and the Surrogate must record the same, and issue letters thereupon, as directed in the judgment. § 1864, Code Civil Proc. § 12. Action for construction of a will relating to real property. — It will have been noted under section 1862, that the judgment establishing a will in an action brought under section 1861, does not aflfect the construction or validity of any provision contained in the will, and that such questions with respect to the disposing provisions of the will must be deter- mined, {a) In the same action, or, (5) In another action or special proceeding as the case re- quires " as if the will was executed within the State." Section 1866 contains the provisions of the Code whereunder 576 surrogates' courts. to secure the interpreting of wills relating to real estate to determiue whether provisions therein are valid or invalid, and to deternaine also the nature and extent of the interest in the property thereby devised which various parties interested would take if the devise is successfully impeached. The section is as follows : The validity, construction or effect, under the laws of the state, of a testamentarj' disposition of real property situated within the stalfe, or of an interest in such property, which would descend to the heir of an intestate, may be determined, in an action brought for that purpose, in like manner as the vaUdity of a deed, purporting to convey land, may be de- termined. The judgment in such an action may perpetually enjoin any party, from setting up or from impeaching the devise, or otherwise making any claim in contravention to the determination of the court, as justice requires. But this section does not apply to a case, where the question in con- troversy is determined by the decree of the Surrogate's Court, duly rendered upon allegations for that purpose, as pre- scribed in article first of title third of chapter eighteenth of this act, where the plaintiff was duly cited, in the special pro- ceeding in the Surrogate's Court, before the commencement of the action. § 1866, Code Civil Proc. This section, it has been held, extends the remedy previously provided for the construction of wills so as to include suits for the construction of devises in behalf of heirs claiming adversely to a will. Read v. Williams, 125 N. Y. 566. And the Court of Appeals in the case last cited held that, it would not be consistent with the spirit of the legislation embodied in this section, to narrow the jurisdiction in cases of bequests of per- sonalty. Judge Andrews remarks at page 566 : " The jurisdiction of a court of equity to entertain an ac- tion in behalf of the next of kin of a testator for the construc- tion of a will disposing of personal estate where the disposition made by the testator is claimed to be invalid or inoperative for any cause was asserted by the chancellor in Bowers v. Smith, 10 Paige, 200, and was maintained in Wager v. Wager, 89 N. Y. 161, and in Holland v. Alcock, 108. N. Y. 312. And he adds : " In such cases the next of kin claim in hostility to the will, ESTABLISHING WILL BY ACTION. 577 but the executors, in case the disposition made by the testator is invalid or cannot take effect, hold the personalty upon a re- sulting trust for those entitled under the Statute of Distribu- tion, and thereby the jurisdiction to bring an equitable action for construction and to have the resulting trust declared by the court attaches as incident to the jurisdiction of equity over trusts." § 13. Who may bring action — The power to construe de- vises is not inherently vested in courts of equity as a distinct and independent branch of jurisdiction, only as incident to their jurisdiction over trusts. Mellen v. Mellen, 139 N. Y. 210, citing Bowers v. Smith, 10 Paige, 193; Monarque v. Monarque, 80 N. Y. 320 ; Wager v. Wager, 89 N. Y. 128 ; Kalish V. Kalish, 166 N. Y. 368, 371, citing Brady v. MgCos- ker, 1 N. Y. 2U ; Read v. Williams, 125 N. Y. 560. The cases of Chipman v. Montgomery, 63 N. Y. 221, and Hor- ton v. Cantwell, 108 IST. Y. 255, in which the right to bring the ac- tion was denied, were cases where the plaintiffs had no interest in the property disposed of b}'^ the will, whether thfe clauses chal- lenged were valid or invalid. Section 1866 of the Code has been repeatedly declared to enlarge the previous powers of the courts. Sections 1866 and 1867 now furnish the whole statutory law upon the subject of which they treat. Anderson v. Anderson, 112 K Y. lOi, 111. In the case last cited. Judge Peckham draws a helpful distinction. He points out that where the Code provides for an inquiry into the question of the proper execu- tion of the testamentary instrument by a competent testator, i. e., for an inquiry into the factum of the will, the court de- scribes the instrument as a " will," but, when the validity of the will, etc., separate from the instrument which creates it, is alone to be inquired into, " the testamentary disposition of real property " is the expression used. § 14. Recording wills proved in otlier states or abroad. Where real property situated within this state, or an inter- est therein, is devised, or made subject to a power of disposi- tion, by a will, duly executed in conformity with the laws of this state, of a person who was, at the time of his or her death, a resident elsewhere within the United States, or in a foreign country and such will has been admitted to probate within the state or territory or foreign country where the decedent so 37 578 SUKEOGATES' COURTS. resided and is filed or recorded in the proper office as pre- scribed by the laws of that si ate or territory, or foreign coun- try, a copy of such will or of the record thereof and of the proofs or of the records thereof, or, if the proofs are not on file or recorded in such office, of any statement, on file or recorded in such office, of the substance of the proofs, au- thenticated as prescribed in this article, or if no proofs and no statement of the substance of the proofs be on file or re- corded in such office, a copy of such will, or of the record thereof, authenticated as prescribed in tliis article, accom- panied by a certificate that no proofs or statement of the sub- stance of proof of such will, are or is on file, or recorded in such office, made and likewise authenticated as prescribed in this article, viay be recorded in the office of the surrogate of any county of this state where such real proi^erty is situated; and such record in the office of such surrogate, or an ex- emplified copy thereof, shall be jJ^'esumptive evidence of such will, and of the execution thereof, in any action or special proceeding relating to such real property. § 3703, Code Civil Proc. A will, to be entitled to record here, for the evidential pur- poses indicated in this section, must have been executed "in conformity with the laws of this State." A.ny defect in the proof of that fact, or of the other essential facts prescribed, de- stroys the utility of the record here. Estate of Sliearen, 1 Civ. Proc. Rep. 455; Estate of Langbein, 1 Dem. M8. Such defect, if discovered when the papers are offered for record, is warrant for refusing record. Ihid. See also Lockwood v. Lookwood, 21 IS". Y. St. Eep. 93. The object of this section is limited. It does not purport to authorize the issuance of letters testamentary on a will so re- corded. Pollock V. Hooley, 67 Hun, 370 ; Matter of Langbein, sujpra. See provisions of L. 1894, chap. 731, ante, pp. 333, 334, as to'issuing letters on probate of a will on record of probate elsewhere of will of United States citizen, dying domiciled anywhere in the British Empire, leaving property' in this State. The record of the foreign probate is made equivalent to proving the will here. Bromley v. Miller, 2 T. & C. 575 ; Matter of Langbein, 1 Dem. 448. A deed, therefore, executed by -the executor conveys title by force of the will, though no letters have issued here. Pollock v. Hooley, supra. ESTABLISHING WILL BY ACTION. 579 The application to the Surrogate should be made by duly verified petition, which should set forth the preliminary facts which authorize the action of the Surrogate in spreading the exemplified copy of will and proofs upon the ;'ecords of the Surrogate's Court. Such petition should show that there is real property situated within the county of the Surrogate which is devised or made subject to a power of sale in a will duly executed in conformity to the laws of this State, by a person who was at the time of death a non-resident, stating place and date of death, alleging original probate with date and place, together with other facts necessary and proper to be brought to the attention of the Surrogate. Matter of Nash, 37 Misc. 706, 709, citing Matter of Shearer, 1 Civ. Proc. 455. In Meiggs v. Hoagland, 68 App. Div. 182, it app'eared (see headnote) that the will of a testator, who died seized of a burial plot situated in the State of New York, was executed in Philadelphia, Pennsylvania, and was admitted to probate in that city by a deputy register of wills. The witnesses did not testify that they had become such at the request of the testator, but they subsequently appeared before another deputy register of wills in Philadelphia and so testified. An exemplified copy of the probate proceedings, including those had before the second deputy register, was filed in the office of the Surrogate of Kings County in November, 1872. Chapter 680 of the Laws of 1872, which was then in force, pro- vided that where any real estate located in the State of New York should be hereafter devised by any person residing out of the State of New York and the will had been admitted to probate in such other State, an exemplified copy of such will and of the proofs might be recorded in the office of the Surro- gate of the county where the real estate was situated and should be presumptive evidence of the will and its due execution. Held, that assuming that all the proceedings in the Eeg- ister's Court of Philadelphia, including the second deposition made by the subscribing witnesses, were properly incorporated in the exemplified record, such record was only presumptive evidence of the will and its due execution and that this presump- tion was overcome by the fact that at the time the will was admitted to probate it had not been shown that the subscribing witnesses became such at the request of the testator. See also Matter of Nash, 37 Misc. 706, where proof of execution was defective. Part IV. LETTERS AND BONDS. CHAPTEK I. LETTERS TESTAMENTARY. § 1. Executors. — An executor is he to whom another man commits by will the execution of his last will and testament. 2 Bl. Coram. 494. Usually every will designates some one or more persons to whom the testator entrusts the carrying into effect of his testamentary desire ; and papers have been upheld as wills and deemed entitled to probate which have merely named an executor without making any disposition of property whatever. See 19 Am. & Eng. Encyclopedia of Law, 178. But the mere failure to designate any executor in a will does not affect the validity of the will ; for, as will be seen below, the court has power to grant letters of administration with the will annexed. § 2. Powers of executor prior to letters. — The authority of the executor is derived from the will, and not from the let- ters testamentary, issued by the Surrogate. Ilartwell v. Wan- dell, 60 N. Y. 346, 350. And the Code provides: "No ex- ecutor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator except to pay funeral charges, nor to interfere with such estate in any manner further than is necessary for its preservation." 3 E. S. 71, section 16, and C. C. P. §2613 in part. Matter of Marcellus, 165 JST. Y. 68, 77. The let- ters are merely the authenticated evidence of the power con- ferred by the will and are founded upon the probate of that instrument. The section just quoted does not affect the char- acter of the office or detract from the efficacy of the will as the source of his power; the executor derives his office from (580) LETTERS TESTAMENTARY. 581 the testamentary appointment as an administrator derives liis from the appointment of the Surrogate. Hartwell v. Wan- dell, 60 N. Y. at p. 350, citing 1 Williams on Executors, 239. Since the interest of the executor in the estate is derived from the will itself, the subsequent issuance of letters relates back to the time of the testator's death. Pearsall v. Elmer, 5 Redf. 181, 186, Calvin, Surr., citing Willard on Executors, 147. See also Humhert v. Wurster, 22 Hun, 405 ; People v. Commissioners, 31 Hun, 235, 237, citing Matter of Oreeley's Will, 15 Abb. N. S. 395 ; Valentine v. Jackson, 9 Wendell, 302 ; Williams on Exec- utors, 239 ; Dayton on Executors, 232 ; Priest v. Watklns, 2 Hill, 225 ; Ex parte Faulkner, 7 Hill, 181 ; Vroom v. Van Home, 10 Paige, 549, 559. The section above cited does not prohibit such possession of the property under the will as may be necessary for its safety until the probate of the will, but merely inhibits the exercise of any power of disposition over the estate or any interference with the estate. But, if it were necessary, for example, to take actual possession of the per- sonal estate for its protection in any respect, the executors would be justified in doing it as the legal effect of their ap- pointment, in the absence of any proof showing their intention not to act or qualify as executors. People v. Commissioners, supra, opinion of Brady, J., at page 237. See also Van Schaack V. Saunders, 32 Hun, 515, 520. It has, however, been held {Matter of Flandrow, 28 Hun, 279, Daniels, J.), that the stat- ute deprives a person named as executor in a will from so acting as to become the representative of the deceased person. In this case a special administrator had been appointed, pending the issuance of letters testamentary or of administration. In such a case, of course, for the time being, the person named in the will as executor would have no right to interfere in any man- ner with the estate, for the purpose of the statute is obviated by the appointment of the temporary administrator. It has been held, where the testator was a partner at the time of his decease and the partnership agreement provided for an election by the surviving partner within a given time after the decease of the other partner within which to acquire title by purchase of the interest left by his deceased partner in the firm property, that, in case the will should not have been probated and letters issued within the period limited by the partnership agreement, the executors named in the will of the deceased partner had 582 surrogates' courts. the power to accept the offer, or to take security for its per- formance, by virtue of their appointment under the will, and that such an act would be for the preservation of the estate of the decedent, within the meaning of section 2613 of the Code. Hull V. Cartledge, 18 App. Div. 54, 61, 62, Bradley, J., citing People V. Commissioners, 31 Hun, 235 ; Hartwell v. Wandell, 60 N. Y. 350 ; People ex rel Gould v. Barker, 150 IST. Y. 52. So the Court of Appeals, in the case last cited, held that, for the purpose of an assessment for taxation on the personal estate of a decedent, such an estate was to be deemed in the posses- sion and control of the person designated in the will as exec- utor from the death of the decedent, and the court remarked, per O'Brien, J : "The executor derives his appointment and his title to the estate from the will, though he is without any substantial power of disposition or administration until the probate court grants him authenticated evidence of his title and of his right in the form of letters testamentary upon proof of the will. " The will is the source of the executor's title and general powers. The letters testamentary, founded upon the probate of the will, do not create the executor nor confer title upon him, but are the authentic evidence of the power conferred by the will and which existed before they were granted. Hartnett v. Wandell, 60 IST. Y. 346. The property of the testator is in the legal custody of the executor appointed by the will, before the probate, and he may exercise many of the powers of an owner over it. He cannot dispose of it, but he may take it into his manual possession for safekeeping. Van SohaacTc v. Saunders, 32 Hun, 515 ; Smith v. Northampton Bank, 4 Cush. 1. " In this case, after the death of the testator, no one had in fact or in law any possession or control of the personal estate except the relators. It consisted of certain securities which were deposited in a vault in the city to which they had access. They could exercise every power over the property that is con- ferred upon executors by the will or by law before probate and no one else could. The probate of the will and letters testa- mentary removed the prohibition of the statute against dispos- ing of the property or interfering with it except for its preserva- tion, but in all other respects the rights and powers of the relat- ors were the same before as after the probate, though in some respects they may have been held in abeyance by force of the LETTERS TESTAMENTARY. 583 statute. The title, possession and control, which the deceased owner had, passed from him at the moment of his death, under and by virtue of the will, to the executors and beneficiaries. The temporary restrictions upon the power of disposition, im- posed by the statute for the protection of the estate had no effect upon the actual possession and custody of the property. They had all the possession and control that was usual under such circumstances and reasonably possible, considering the great magnitude of the estate and the nature and character of the property. The possession and custody which the testator had was continued in the relators by force of his will for every purpose of taxation as well as protection. Any other conclu- sion would involve the anomaly that seventy millions of prop- ert}^ could exist in full view of the commissioners without any power on their part to include it in the assessment rolls." § 3. Executor acting before letters cannot later set aside his act unless inequitable.— Where the act done before the issuing of letters by an executor or administrator is an equitable one, and done in good faith, such executor or administrator cannot, after qualifying, set aside the settlement or transaction on the mere ground of his own lack of power ; it must clearly appear that the act was prejudicial to the estate. Consequently, where it was manifest that the settlement or adjustment was not attended by any fraud or deceit, and that it was equitable, and that the creditor obtained no more than was her due from the intestate under the contract had by such creditor with the intes- tate, the Appellate Division refused to allow the administratrix " to overhaul the settlement which she deliberately made with- out any fraud." Bennett v. Lyndon, 8 App. Div. 387, 389, Hardin, P. J., citing Vroo7n v. Van Rome, 10 Paige, 649, 557 ; Priest V. Watkins, 2 Hill, 225. § 4. Letters testamentary. Where a will, which is admitted to probate, names one or more persons to be executor or executors thereof, upon a con- tingency, the siuTOgate must inquire into the facts, and, if the contingency has happened, that fact must be recited in the decree. Immediately after a will has been admitted to probate, the person or persons named therein as executors, who are competent by law to serve, and who appear and qualify, are entitled to letters testamentary thereupon; un- less, before the letters are granted, a creditor of the dece- 584 SXJKROGATES' COUBTS. dent, or a person interested in the estate, files an afladavit, specifying his demand, or how he is interested, and either setting forth specifically one or more legal objections to grant- ing the letters to one or more of the executors, or stating that he is advised and believes that there are such objections, and that he intends to file a specific statement of the same. Where such an affidavit is filed, the surrogate must stay tbe granting of letters, at least tliii'ty days, or until the mat- ter is sooner disposed of. A specification or statement of an objection, made as prescribed in this section, must be veii- fied by the oath of the objector, or his attorney, to the effect that he believes it to be true. § 3636, Code Civil Proc. (See ^12, post, as to objections.) The Surrogate under this section must issue letters testa- mentary to the persons named as executors, and, as appears from the wording of the section, if one or more persons are designated in the will or codicil to act upon a certain contin- gency, the Surrogate must before he issues letters be satisfied that the contingency has or has not happened. Inquiry on this point may be had before the Surrogate or before a referee appointed for the purpose. The fact of the happening of tbe contingency will appear in the decree which fixes by express designation the persons who are entitled to letters. If it ap- pear that the contingency named has happened, the Surrogate must issue letters to such person. The contingency that is quite frequently provided for in wills is to designate an exec- utor to act in case of the death of the person first named as executor. Where a testator appoints an executor and so pro- vides, that in case of his death another should be substituted, if it appears to have been the testator's intention that the sub- stitution should take place on the death of the original exec- utor whether happening in the testator's lifetime or afterwards, the executor so substituted may be admitted to the office even though the original executor has proved the will and qualified. Dayton on Surrogates (3d ed.), p. 209; Matter of Cornell, 17 Misc. 468 ; Matter of Alexander, 16 Abb. Pr. JST. S. 9 ; Hartnett V. Wandell, 60 K Y. 346. § 4a. Effect of appeal from probate decree.— Where ap- peal is taken from a decree admitting a will to probate or granting letters testamentary, the appeal does not stay the LETTERS TESTAMENTARY. 585 issuance of letters if, in the opinion of the Surrogate, mani- fested by an order, the presemation of the estate requires that the letters should issue. See section 2582, quoted and discussed, ante, at page 255 et seq.; Mattel- of Olhon, 48 App. Div. 598, a.x\&post, under temporary administration, page 650. § 5. Who entitled to letters.— The section just quoted pro- vides that the person or persons named in a will which has been admitted to probate as executors are entitled to letters tes- tamentary, provided, first, that they be competent by law to serve ; and second, that they appear and qualify. Any person is qualified to serve as executor who is not disqualified by the provisions of section 2612, which provides : No person is competent to sei've as an executor who, at the time the will is proved, is : 1 . Incapable in law of making a contract. 2. Under the age of twenty-one years. 3. An alien not an inhabitant of this state ; or 4. Who shall have been convicted of an infamous crime; or 5. "Who, on proof, is found by the surrogate to be incom- petent to execute the duties of such trust by reason of drunk- enness, dishonesty, improvidence or want of understanding. If any such person be named as the sole executor in a will, or if all the persons named therein as executors be incompe- tent, letters of administration with the will annexed must be issued as in the case of all of the executors renouncing. A surrogate, in his discretion, may refuse to grant letters testa- mentary or of administration to a person unable to read and -write the English language. § 3813, Code Civil Proc. Under this section there have been few cases where a Surro- gate has exercised his discretion in excluding a person named as executor or applying for letters for illiteracy ; and it is a difficult question to determine just how far an inability to read or write would necessarily disqualify from performing the duties of executor or administrator, and consequently the discretion of the Surrogate is largely invoked by such an application, par- ticularly where the person applying for letters of administration is entitled under the statute ; for the statute makes it the duty of the Surrogate to issue letters to persons in the order named therein if they are by law competent to serve. The general rule seems to be that every person is competent unless declared 586 surrogates' courts. to be incompetent by statute, and that no new causes of disqual- ideation may be added to those prescribed by statute. Where the widow of an intestate decedent applied for letters of admin- istration, and the Surrogate found that she was unable to read or write the English language, that " her illiteracy was further burdened by a density hard to comprehend," and that she was unable even to count money, it was held that such a person was deficient in capacity to manage, or ability to perform the duties that would be incumbent upon her, and that it was a proper case for her exclusion by the Surrogate. Matter of Haley, 21 Misc. 777, 779, Marcus, Surr. § 6. Same subject.— So the appointment of a minor, or a person incapable in law of making a contract, is void. Knox V. Nobel, 77 Hun, 230. So where objection is made to the ap- pointment of an executor or administrator on the ground of the existence of a disqualification specified in section 2612 or 2661, as the case may be, the courts in construing the statute have determined that not every degree and grade of vice or de- fects mentioned will disqualify. See § 14, below. In Emerson v. Bowers, 14 N. Y. 449, the Court of Appeals says : " All departures in conduct from the principles of recti- tude, including all abuses of trust, are unwise and inexpedient, and, therefore, in a certain sense improvident, but they do not constitute the kind of improvidence which the legislature had in view in these enactments ; a very careful, shrewd and money- making person may be guilty of negligence or abuse in a fidu- ciary capacity, but such a person is not improvident in the sense of the statute ; the words with which the term is associated, ' drunkenness,' ' want of understanding,' are of some importance in arriving at its true construction ; the term evidently refers to habits of mind and conduct which become a part of the man and render him generally and under all ordinary circumstances unfit for the trust or employment in question." In case of Conpe v. Lowerre, 1 Barb. Ch. 45, it appeared that the applicant had shortly before applied for a discharge under the Insolvent Act ; that he was grossly negligent in the manage- ment of his property and affairs, and in contracting debts, and in indorsing for parties without responsibility ; that he had had a verdict against him in an action for seduction, and other se- rious imputations were made against his moral character ; but the chancellor, upon appeal from the decision of the Surrogate LETTERS TESTAMENTAKY. 587 appointing the applicant, held that no degree of moral guilt or delinquency would be sufficient to exclude him, unless he had been actually convicted of crime. This case is cited and ap- proved in Emerson v. Bowers. It has been held that vicious conduct, improper and dishonest acquisitions of property, and even loose habits of business, did not constitute " improvi- dence " within the meaning of the statute ; nor the fact that the petitioner was indebted to the estate. Coggeshall v. Green, 9 Hun, 471. Improvidence and lack of understanding, in order to disqualify, must amount to a lack of intelligence. Shilton^s Estate, 1 Tucker, 73. Habits of intemperance do not disqualify unless they amount to habitual drunkenness in the legal sense of the term. Elmer v. Kechele, 1 Redf . 472 ; Matter of Manley, 12 Misc. 472, 474, Davie, Surr. §7. The word "executor" not essential. — To entitle a per- son to qualify as executor he need not be so named in the will. It is not necessary that the appointment should name a person in so many words as executor of the will, but any provision in the will showing that the testator intended that the duties of executor should be discharged by the person named is suffi- cient to constitute such person an executor according to the tenor thereof, and to entitle him to letters testamentary thereon. Matter of Blancan, 4 Kedf. 1.51, Calvin, Surr. In this case the will was substantially as follows : " Wishing to give to my hus- band a proof of my sincere affection I constitute him my general and universal legatee, and I dispense with his giving security for the possession of my property in which he shall have only a life interest." It appeared that the will was executed in France and that by the use of the words, " general and univer- sal legatee," the law of France devolved upon such a legatee both the rights and duties of an executor, and the Surrogate held that it was manifest from the wording of the will that the testatrix intended her husband to perform the duties of execu- tor because she dispensed with his giving security for the estate, showing conclusively that she contemplated and in- tended that he should have the possession, control and manag(>- ment thereof. So in another case {Ex paiHe McDonnell, 2 Bradf. 32) Judge Bradford held where the brother of a testa- tor was directed by the will to convert the property into cash, to invest the proceeds and transmit the interest to the testator's father, that this was a sufficient designation of the brother as 588 SUEBOGATES' COUKTS. executor and that the use of the word " executor" was not es- sential to the appointment and that letters testamentary should issue. See also Ex parte McCorniick^ 2 Bradf. 170. It is not necessary that the testator should designate his executor or executors by particular names so long as his designation is suf- ficiently definite to be capable of being made certain. Thus, in Matter of Hardy, 2 Dem. 91, the Surrogate of Kings County upheld a designation appointing " The trustees for the time being of Magnolia Lodge No. 166, Independent Order of Odd Fellows to be executors of this my last will and testament." All that is necessary in such case is that the Surrogate be able to ascertain who are the persons corresponding to the designation. In the case cited, the practice indicated was that the persons constituting the trustees for the time being of the society named, should make written application for letters upon which the Surrogate could take proof in the premises, and having ascertained that they were the persons claimed, letters were issued accordinglJ^ Surrogate Eollins expressed a doubt (tSW- zel V. Cruikshank, 4 Dem. 352) as to the effect of the designa- tion of a sole executor in a codicil to a will which in turn named an independent sole executor. The will having been proved, the Surrogate declined to withhold the issuance of letters tes- tamentary to the executor named in the will on the ground that the codicil might never be proved, but intimated a doubt as to whether in case of its probate and the issuance of letters to the person named in such codicil the functions of the exec- utor already qualified would cease or whether both executors would act jointly. See cases cited in opinion. § 8. Oath of executor. — By the word " qualify" used in section 2636 (" executors who appear and qualify") is meant the taking of the ofiicial oath required by law. This oath must be filed with the Surrogate before letters are issued. The character of the oath is prescribed by the Code. The official oath or affirmation of an executor, administra- tor, or guardian, to the effect that he will well, faithfully aud honestly discharge the duties of his office, describing it, must be filed with the surrogate before letters are issued to him. The oath may be taken before any officer, within or without the state, who is authorized to take an affidavit, to be used in the supreme court. Where it is taken without LETTBKS TESTAMENTARY. 589 the state, it must be certified as required by law, with re- spect to aa affidavit to be used iu the supreme court. § 3594, Code Civil Proc. Surrogate's Court, County of Oath of execn- ^°^ ^^^ Matter of the Probate" ^jjj.^ of a paper writing purport- ing to be the Last Will and Testament of Deceased. County, ss. : I, of the of County of Execut named in the last will and tes- tament of late of the of County of deceased, do solemnly swear and declare that I will well, honestly and faith- fully discharge the duties of Execut of said last will and testament according to law. Sworn to before me this ) day of 189 | Post-offlce address. There is no time specified within which executors must qualify as there is, for example, in the case of testamentary guardians, who are directed to qualify within thirty days, unless for good cause their time be extended to 3 months by the Surrogate. In the case of such an officer, he must qualify within the time limited or extended or he will be deemed to have renounced the appointment under section 28.52. And accordingly it was held by Ransom, Surrogate, that where the appointment of a testamentary guardian was conditioned to take effect upon the happening of a certain contingency, such as the attaining by a person named of his majority, the .30 days or 3 months would begin to run from the date of the happening of the contingency. Matter of Constantine, 6 N. Y. Supp. 554. But it is, generally speaking, highly important that executors should qualify as promptly as possible. And it may be saiil to be their duty, in cases of contests which appear to promise a long deferring of the issuing of letters testamentary, to secure the appointment of a temporary administrator. This rule is suggested for the reason that contracts may be extant made by 590 StTEKOGATES COURTS. the deceased under which his representative may be required to do some particular act within a time therein specified. This is particularly true in regard to policies of insurance under which a loss may occur at any time. For the courts have most strictly upheld the rights of the insurer to hold the assured to the terms of the contract of insurance in respect of the time within which proofs of loss must be submitted. And the court will not write into the contract of insurance where the time is limited from the occurrence of the fire such words as, ^'within sixty days" or whatever the time may be, " after letters testa- mentary are issued.'^ Thei'e is no question, however, that an executor would have the power (and his exercise thereof would be upheld by the courts) if he presumed to act although letters have not been issued, in furnishing necessary proofs of loss un- der a policy of fire insurance. The rule in such a case would seem to be as follows : First. To make an application for letters of temporary ad- ministration. Second. If they are granted, promptly to file proofs of loss in his capacity as temporary administrator. Third. If his application is denied, he should assume the responsibility of furnishing proofs under his qualified power under section 2613 to preserve and protect the estate and the interest of creditors, legatees and all others whom by the will he is designated to represent. See Matthews v. American Cen- tral Insurance Co., 9 App. Div. 339, opinion of Green, J., at page 344. § 9. Renunciation. — A person named in a will as executor may be perfectly competent to serve but cannot be compelled to serve. Provision is made by the Code in this connection as follows : A person, named as executor in a will, may renounce the appointment by an instrument in writing, signed by him, and acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, or attested by one or more witnesses, and proved to the satisfaction of the surro- gate. Such a renunciation may be retracted by a like instru- ment, at any time before letters testamentary, or letters of administration with the will annexed, have been issued to any other person in his place ; or, after they have been so issued, LETTERS TESTAMENTAEY. 591 if they have been revoked, or the person to whom they were issued has died, or become a lunatic, and there is no other acting executor or administrator. Where a retraction is so made, letters testamentary may, in the discretion of the sur- rogate, be issued to the person making it. An instrument specified in this section must be filed and recorded in the surrogate's office. § 3639, Code Civil Proc. This section is clear. But it has been held that an oral re- nunciation made in open court, and in person, by the executor is valid, and cannot be orally recalled. Matter of Baldwin, 27 App. Div. 506, 509. If he changes his mind he must petition the Surrogate for leave to retract. Hid. The Surrogate is permitted to exercise his discretion in issuing letters to an exec- utor who has renounced but revoked his renunciation. The rule is a sound and just one and enables the Surrogate to con- sider, in determining whether a person so renouncing and re- tracting his renunciation, is a fit person to administer the estate regardless of the disqualifications imposed by section 2612. So where a widow of testator was 70 years of age, had twice been stricken with paralysis, was bedridden, and obliged to expend large sums of money for medical care and physicians' attendance, the Surrogate held that it would be an improper exercise of his discretion to place her as executrix in charge of a large estate involving railroad, banking, and real estate inter- ests, after she had once renounced. Matter of Qornell, 17 Misc. i68, 471, Betts, Surr. § 10. Renunciation not a resignation. — The renunciation contemplated by section 2639 is a renunciation of the appoint- ment and not of the olBce. That is to say, one named in a will as executor may file a formal document of renunciation waiving the right to administer the estate and decline to receive letters testamentary. Surrogate's Court, County of Erie, New York. Renunciation by In the Matter of Granting Let-^ execator. ters Testamentary of and under the Last Will and Tes- tament of Deceased. I, of the of New York, 692 SUKEOGATES' COURTS. Execut appointed in and by the Last Will and Testament of late of the of County of Erie, New York, deceased, do hereby renounce said appointment and all right and claim to letters testamentary of and under said Last Will and Testament, or to act as Execut thereof. Dated this day of 189 Witness. Note. This is required in Erie County and seems to be a precau- tionary require- ment only. Note.. This Re- nunciation must be aolcnowledged or proved, and certified in like manner as a deed to be recorded in the county, or at- tested by one or more witnesses and proved to the satisfaction of the Surrogate by affi- davit. If taken before an officer l-esiding in an- other county, at- tach certificate of county clerk. Person renouncing to sign here. rYork,) ^Erie. j' Witness. State of New ^ County of '. On this day of son ally came person described in and who executed the fore- going Renunciation, and acknowledged the exe- cution thereof. Officer taking acknowledgment to sign here. 189 before me per- to me known to be the State of New York, ) Erie. ) ss. : (^Note.) County of . of the county of New York, being duly sworn deposes and says that he is well acquainted with the person men- tioned in tlie foregoing Renunciation, and with h manner and style of handwriting, having often seen h write, and that deponent verily believes that the signature purporting to lie the signature of the aforesaid person signed to the said Renunciation, is the true and genuine liand- writing and signature of the aforesaid person. {Note.) Sworn to before me, this > day of 189 [ Person making affidavit to sign here. Officer taking affidavit to sign here. LETTERS TESTAMENTARY. 693 Surrogate's Court, County of To Hon. Retraction of a Renunciation. Note. Where the light to ad- minister has been renounced, the re- traction should specify the rela- tionship and pri- ority of right of the one retracting. Note. This re- tracticm must be acknowledged or proved and certi- fied in like man- ner as a deed to be recorded In the county, or at- tested and proved to the satisfaction of the Surrogate by affidavit. (Pro- cure county clerk's certificate when necessary.) Title. Surrogate. I of the city of New York, one of the executors named and appointed in and bj' the last will and testament of late of the city of New York, deceased, {note) do hereby re- tract the Renunciation of my said appointment, and of the right and claim to letters testamen- tary on said will (or of administration, as the case may be) , and the right to act as one of the executors thereof, which was by me made and acknowledged on the day of 18 and filed in the office of the Surrogate of county ; and pray that letters testamentary (or letters of administration) may be granted to me, according to law, as one of such executors thereof. (Note.) (Date.) (Signature.) § 10a. Resignation. — But once letters have been issued and an executor has qualified, the only way in which he can be re- lieved of the duties of the office is by a resignation which must be acted upon by the Surrogate, 38 The word resignation is here 594 SUKBOGATES' COUKTS. used in the sense of an application by an executor for a revo- cation of his letters under section 2689 herein below discussed, for it has been held that an executor or administrator has no power to resign. Matter of Curtiss, 9 App. Div. 285, 295, affirming 15 Misc. 545, upon opinions of Silkman, Surr. So in the case of Tilden v. Fiske, i Dem. 357, Judge EoUins held that, where a will provided for the filling of vacancies that miuht be caused by death, neglect to qualify'-, disqualification, resignation or removal,that the resignation contemplated was practically the qualified right which any executor has to the revocation of his letters upon compliance with the statute un- der sections 2689 and 2690, Code Civ. Proo. There is no other way in which an executor can be relieved of the duties of his oflice. It is manifest that this is the meaning of the Code be- cause of the provision that the renunciation allowed by sec- tion 2639 might be retracted any time before letters testamen- tary or letters of administration with the will annexed shall have been issued to any other person in his place, or where after they have been so issued they have been revoked, or the incum- bent has died and there is no other acting executor or admin- istrator. Surrogate Rollins declared, in the Matter of Saarez, 3 Dem. 164, 167, that in no reported case had the right to retract a renunciation been recognized by the courts save where the re- tractor had renounced absolutely, that is, had rejected his title of executor and refused to take and receive letters, citing Jud- son V. Gibbons, 5 Wend. 224; Robertson v. McGeoch, 11 Paige, 640. Therefore one who has become invested with the office of executor cannot renounce the appointment. Matter of Suarez, supra. Moreover, one who has resigned and been dis- charged cannot retract his resignation. Matter of Beakes, 5 Dem. 128. It appears, therefore, that the renunciation must be made before the issuance of letters ; resignation may only be made after qualifying. Kesignation may not be retracted, renunciation may be retracted in one of the cases provided for in section 2639, Code Civ. Proc. (Note that a retraction of renunciation must be executed with the same formality as the renunciation itself.) So where there were two executors named in a will and before letters were issued one renounced and the other qualified, and the latter was subsequently re- moved for cause, it was properly held that the former executor could retract his renunciation and ask for letters. Codding v. LETTERS TESTAMENTARY, 595 Newman, 63 N. Y. 639. But leave of the court must be ob- tained to retract a renunciation. Matter of Treadwell, 37 Misc. 58A ; Matter of Haug, 29 Misc. 36 ; Matter of Clute, 37 Misc. 710. The Surrogate has discretion to grant or withhold his permission. Matter of Cornell, 75 N. Y. St. Kep. 664; Mat- ter of Baldwin, 27 App. Div. 506. The renunciation is thus a mere waiver, subject to a legal right of retraction at any time prior to rights having vested on the faith of it. Casey V. Gardiner, 4 Bradf. 13; Matter of Wilson, 92 Hun, 318, 322. When one renounces and then asks leave to retract, the Surrogate in his discretion may take all the circumstances into consideration, and is not limited, in refusing his consent, to the existence of statutory reasons for refusing letters. Thus, where A renounced, and coincidently assigned all his inter- est in the estate to B, it was held the Surrogate might de- cline to grant him leave to retract and take letters. Mat- ter of Clute, 37 Misc. 710. On the other hand, revocation of letters completely terminates the functions of the execu- tor. In such case he cannot be rehabilitated. The decree of revocation must be regarded as conclusive and final, unless obtained fraudulently or on some other ground which would warrant the court in setting aside or vacating it. Thus, where there were two executors named in a will and one alone quali- fied and was subsequently adjudged to be a lunatic, whereupon the Surrogate made a decree revoking his letters, after which the second executor applied for letters which were accordingly issued to him, held, that although it subsequently appeared that the former executor had regained his sanity and had been judicially declared sane, there was no power in the Surrogate to reappoint this executor, and that even in case the executor then acting should for any reason cease to act, the only proper practice would be to have an administration with the will an- nexed. Matter of Bearing, 4 Dem. 81. The rule being that where letters have once been revoked the appointment of the executor ceases to exist just as completely as if he had never been named by the testator. § 11. Executor need not be named in the will.— A will need not necessarily designate an executor by name ; it may au- thorize some one designated in the will to select an executor, in which case the procedure to be followed is distinctly regulated by the Code. 596 SUEEOGATES' COUETS. Where the will contains a valid power, authorizing the se- lection, as executor thereof, of a person not named therein, the selection must be made, by the person appointed for that purpose, within thii-ty days after making the decree admit- ting the will to probate ; in default whereof, the power of se- lection is deemed to have been renounced. Such selection must be made by an insti-ument in writing, designating the person selected, signed by the proper person, and acknowl- edged or proved, and certified, in like manner as a deed to be recorded in the county, or proved to the satisfaction of the surrogate, and filed in the surrogate's office. Where the wiU authorizes the person, so to be selected, to act with the executor or executors named therein, the issuing of letters must be delayed until the expiration of the period, fixed in this section for the exercise of the power of selection, and, if the selection is so made, for five days thereafter. § 5i640, Code Civil Proc. The dictum of the Court of Appeals in Hartnett v. Wandell, 60 N. Y. 346, at page 356, that where a testator constituted his wife executrix and requested, " that such male friend as she may desire shall be appointed with her as executor," she could take no measures for the designation and commissioning of a co- executor until she had qualitied as executrix, must be deemed to be superseded by the language of section 2640, which re- gardless of the persons by whom the designation must be made prohibits the issuing of letters until the expiration of thirty days within which the selection is required to be made. The opinion of Judge Grover at page 357 (in which Judge Folger joined), pointed out the danger in such cases before the Code, that the selecting of an executor under a power after the will had been probated and other executors had qualified, took away from those who otherwise might have a right to object to the qualifications of the persons so selected ; this is completely met by the following provision : Within five days after a selection is made, as prescribed in the last section, any person may file an affidavit, verified as prescribed in section 2636 of tliis act, showing tliat he is a creditor of the decedent, or a person interested in the estate, ^nd setting forth specifically one or more legal objectitms to granting letters to the person selected. The proceedings, to LETTERS TESTAMENTARY. 597 be taken thereupon are the same as prescribed in sections 2637 and 2638 of this act. If letters are not issued to the person so selected, the power of selection is deemed to be exhausted. § 364:1, Code Civil Proc. § 12. Objections — It has already been noted in section 2636 that a creditor of the decedent or a person interested in the estate may before letters testamentary are granted file an affi- davit specifying his demands or how he is interested in the estate, and either setting forth specitically one or more legal objections to granting letters to one or more of the executors, or stating that he is advised and believes that there are such objections and that he intends to file a specific statement of the same. It "will have been noted that the provisions of sec- tion 2611 as to 'objections which may be filed to a person desig- nated under a power are identical with these and they may be considered together. In the first place, any party interested may file such objections. Ferriis Estate, 1 Tucker, 15. But whether he be a creditor or a party interested, he must satisfy the Surrogate as to the particulars of his claim or the nature of his interest as the Surrogate is entitled to determine the ques- tion of interest in advance of passing on the objections. Bur- well V. Shaw, 3 Bradf. 322. The objections must be specific, must state some legal reason why letters should not issue, such as that the person named in the will or designated under the power is a minor, or non compos mentis, or an alien, or a non- resident, or has been convicted of an infamous crime, or is an habitual drunkard, or so dishonest, ignorant, or improvident as to be incapable of executing the trust, or that his circumstances are such that they do not afford adequate security for the cred- itors or persons interested in the estate for the due administra- tion of the estate. The affidavit whether containing the objec- tions or a statement that the objector is advised and believes that there are such objections, must be verified by the oath of the objector or his attorney to the efl'ect that he believes it to be true. § 2636, Code Civ. Proc. The effect of the filing of this affidavit is to stay the granting of letters for at least 30 days or until the proceedings initiated by the affidavit are dis- posed of. 598 StJKROGATES COUETS. AflSdarit of in- tention to file ob- jections agrainst grant of letters. Note. § 2636 re- quires this state- ment to be vei'ified by the oath of the objector or his at- t o r n e y to the effect that he be- lieves it to be true. Surrogate's Court, County of Title. I State of New York ) County of f ®^- ' of the city of being duly sworn, says : I. I am (state relationsMp to decedent) whose last win and testament was, on the day of 18 duly admitted to probate by the Sur- rogate of the county of and of which said will is named one of the executors. II. I am a legatee under the said last will (or say I am a creditor of the said decedent, or if a person interested state nature of interest), and am advised and believe that there are one or more legal objections to granting the letters tes- tamentary thereon to the said and I in- tend to file a specific statement of the same. (Note.) (Signature.) Objections against the granting of let- t e r s testamen- tary. Surrogate's Court, County of Title, t To Hon. Surrogate of the county of of the city of a legatee under the last will and testament of late of the city of deceased, (or a cred- itor of said decedent, or state nature of interest) objects to the granting of letters testamentary of the said last will and testament to one of the executors therein named, and specifically sets forth as and for his objections thereto as follows : (here state in order objections under section 2612, or section 2638, subdivision 1). (Date.) (Signature.) (Verify as required by section 2636.) LETTERS TESTAMENTARY. 599 Answers to ob- jectious. Surrogate's Court, County of Title. I one of the executors named in the last will and testament of deceased, in answer to the objections filed by in this matter, respectfully says : (here answer ob- jections filed categorically and concisely) . Wherefore, he prays that said objections be overruled and that letters testamentary be duly issued to him under the said wUl. (Verification.) (Signature.) Order for in- quiry aud stay. Surrogate's Court Caption. Note. § 2637 says that the Sur- rogate must in- quire into the objection filed. Tlie objector is really the moving party, but if he fail, to attend and substantiate his objections they must be over- ruled. Title. On reading and filing the objections of the of late of the city of deceased, and a legatee under his last will and testament (or a creditor of said decedent, or state nature of interest) against the granting of letters testamentary of the said last will and tes- tament of to one of the executors therein named : It is Ordered that the said (name person ob- jected to) personally appear before the Surro- gate of the county of at his office in the citj' of on the day of at 10.30 o'clock in the forenoon of that day, and attend the inquiry by the Surrogate {note) into the said objections ; And it is further Ordered that the granting of letters testamentary under the last will and tes- tament of deceased, be and it hereby is stayed until the day of (at least thirty days) or until the further order of the court herein. (Signature.) Surrogate. 600 surrogates' courts. Order on objec- tions. Surrogate's Court Caption. Note. If this clause be omitted the executor may, nevertheless, un- der §2638 "entitle himself to let- ters" by giving the requisite bond. Title. On reading and filing the objections of the late of the city of deceased, and a (state nature of interest as in objection) , against granting letters testamentary of tlie said last will and testament of to one of the executors therein named ; and the answer thereto of such objected to, and due inquiry thereinto and deliberation thereupon hav- ing been had by the Surrogate ; and it appear- ing to the satisfaction of the Surrogate tliat there are (no) legal objections to granting letters testamentary to said Now, on motion of of counsel for said (name prevailing party), it is Ordered, that the objections to said on the ground of (state objections established, if any) are established (or say that the objections to said have not been estabHshed and are hereby overruled). ( Where objection established is one of those specified in § 2638 of the Code, add and letters testamentary ought not to be granted to said unless within five days he shall execute and file a bond, as prescribed by law) (here add details of bond to be requu-ed) . Note. (Signature.) § 13. Same subject— Surrogate's action. The surrogate must inquire into an objection, filed as pre- scribed in the last section ; and, for that purpose, he may receive proof , by affidavit or otherwise, in his discretion. If it appears that there is a legal and sufldcient objection to any person, named as executor in the will, letters shall not be issued to him, except as prescribed in the next section. § 3637, Code Civil Proc. The proceedings are addressed to the Surrogate's discretion. The proof must clearly point to some incompetency fixed by statute or to some personal qualities of the executor named LETTERS TESTAMENTARY. 601 such, as to satisfy the Surrogate that it would be unsafe to put the estate in his hands. The theory upon which the Surrogate proceeds was outlined by Chancellor Walworth long before the Code (see Mandeville v. Mandeville, 8 Paige, 476), where, in construing a similar provision of the Revised Statutes (2 R. S. 72, § 18), he said: "It certainly could not have been the intention of the legislature, to prohibit the granting of let- ters testamentary to any executor except such as are possessed of property of their own, to the full value of the estate which the testator has authorized and appointed them to administer ; or that an executor should be superseded in his trust, or re- quired to find security, whenever his property was reduced be- low that of the decedent. Such a construction of the statute would render it almost impossible for a man of a large property to select an executor who would be both able and willing to as- sume the execution of the trust. The obvious meaning of the statute is, that an executor may be required to give security, whenever the Surrogate is satisfied that his circumstances are such as to render it doubtful whether the property will be safe in liis hands, to be disposed of, or administered, as directed by the will." The statute in question construed by the chancellor was one authorizing the Surrogate to require an executor to give seca- rity, " where his circumstances Aave iecome so precarious as not to afl'ord adequate security for the due administration of the estate." For this statute the present provision of the Code has been substituted and it has been held {Martin v. Duke, 5 Redf. 597, 600, approved in 36 Hun, 122, 127, Rollins, Surro- gate), to have been designed to give the Surrogate power to refuse letters whenever under all the circumstances of the case he should be of the opinion that such a course was proper for the protection of the rights and interest of the beneficiaries under the will. Thrift, integrity, good repute, business capa- city and stability of character, for example, are circumstances which may be very properly considered in determining the question of adequate security. § 1-1. Same. — "Where the objections alleged are those speci- fied in section 2612, the Surrogate has no discretion but must refuse to issue letters. And where, having all the facts before him, he finds a person to be incompetent under subdivision 5 of section 2612 as, for example, by reason of drunkenness, his 602 SUEEOGATES' COURTS. finding will usually not be disturbed. Matter of Cady, 3.6 Hun, 122, 125, where Hardin, P. J., observes that it was the inten- tion of the legislature to provide in section 2637 a somewhat speedy and summary determination of the questions raised by objections made to the competency of a person to serve as exec- utor, and the learned justice cited with approval certain lan- guage of Judge Denio {McGregor v. Buel, 2± N. Y. 169), " The propriety of issuing or withholding such letters," i. e., in this case special letters of administration "is plainly dependent upon the exigencies of the estate, the amount and situation of the estate, and other circumstances which require to be judged of summarily and are not suitable to be litigated through the courts upon appeal. The determination of the Surrogate upon such questions is as it should be summary and exclusive." The improvidence contemplated by subdivision 5 of section 2612, is that want of care or foresight in the management of prop- erty which would be likely to render the estate and etfects of the decedent unsafe and liable to be lost or diminished in value b}' improvidence in case administration thereof should be committed to such improvident person. Matter of Cady, supra. A man who is careless and improvident or who is want- ing in ordinary care and forecast in the acquisition and preser- vation of property for himself cannot with safety be entrusted with the management and preservation of the property of others. Coope v. Lowerre, 1 Barb. Ch. 45. So it has been held that the fact that the man was a professional gambler is presumptive evidence of such improvidence as to render him incompetent to discharge the duties of executor or administra- tor {McMahon v. Harrison, 6 JS^. Y. 443), and the Court of Appeals (Emerson v. Bowers, 14 JST. Y. 449), in defining im- providence says : " The term evidently refers to habits of mind and conduct which become a part of the man and render him generally and under all circumstances unfit for the trust or employment in question." See also Freeman v. Kellogg, 4 liedf. 224; Matter of Cady, 36 Hun, 122. See also Matter of the Administration of the Goods of Daniel C. Shilton, 1 Tucker, 73. § 15. Same ; where executor is also trustee. — It is often the fact that the person to whom objections are filed as execu- tor is constituted by the will testamentarj' trustee as well ; in such case the Surrogate has jurisdiction to remove the person so objected to in both capacities at the same time by virtue of LETTERS TESTAMENTARY. 603 section 2817 of the Code which authorizes the Surrogate to re- move a testamentary trustee where, " If he were named in a will as executor letters testamentary would not be issued to him by reason of his personal disqualification or incompetency." See Matter of Gady^ 36 Hun, 122, 128, citing Savage v. Gould, 60 How. 25i, and oases cited, and opinion of Boardman, J. § 16. Obviating objection by security. — There are two ob- jections which although substantiated to the satisfaction of the Surrogate may nevertheless be obviated by the filing of secu- rity ; they are covered by section 2638. In either of the following cases, a person named as execu- tor ia a will, may entitle himself to letters testamentary there- upon, by giving a bond as prescribed by law, although an objection against him has been established to the satisfaction of the surrogate : 1. Where the objection is, that his circumstances are such, that they do not afford adequate security to the creditors, or persons interested in the estate, for the due administration of the estate. 2. Where the objection is that he is not a resident of the state ; and he is a citizen of the United States. But a person against whom there is no objection, except that of non-residence, is entitled to letters testamentary, with- out giving a bond, if he has an office within the state, for the regular transaction of business in person ; and the will con- tains an express provision, to the effect that he may act with- out giving security. § 3638, Code Civil Proc. 2 R. S. 70, the remainder of §6, and part of § 7; and L. 1873, chap. 657. This section is not to be confused with section 2685, sub- division 5, which has been referred to above, which provides for the revocation of letters where it is made to appear to the Sur- roo-ate that the executor's " circumstances are such that they do not afford adequate security to the creditors or persons inter- ested for the due administration of the estate." Where it ap- pears in sucli a case that the executor has already given a bond under section 2638, the Surrogate may, if he chooses, decline to entertain the application (C. C. F. §2686, q. v.) ; but, if no such bond has been given, he may allow the letters to remain unre- voked upon the filing by the executor of a proper bond within 6.04 STJKEOGATES' COUBTS. a reasonable time not exceeding five days. § 2687, C. 0. P. See Matter of O'Brien, 19 N. Y. Supp. 541. § 17. Effect of testator's dispensing with security.— Of course, where a testator has chosen his executor and has ex- pressly provided that he shall serve without bond, the court will not be likely to disregard his wishes, but will rather indulge in the presumption that the testator had just grounds for his confidence in the integrity of the executor ; but if there is pal- pable proof showing that the testator has made an injudicious and unsafe selection, the court has full power to interfere. Bal- lard V. Charlesworth, 1 Dem. 501. §18. What is adequate security? — The words "adequate security" used in section 2638 are in a context more favorable to the e.xecutor than the language of the former statute, which read, " that his circumstances are so precarious " instead of as at present, " his circumstances are such." Ilovey v. McLean, 1 Dem. 396, 398, citing Shields v. Shields, 60 Barb. 56. And the words " adequate security " do not refer primarily to pe- cuniary responsibility but to the executor's " habits of hus- bandry whether provident or improvident, whether reckless or careful." Mandeville v. Mandeville, 8 Paige, 475 ; Shields v. Shields, supra ; Ballard v. Charlesworth, 1 Dem. 501. So se- curity will not be required merely because the executor does not own property to the full value of the estate. Mandeville V. Mandeville, supra. Nor on the other hand " because he has an ill-regulated temper or lacks self-control " or has eccentrici- ties of character. McGregor v. McGregor, 1 Keyes, 133. But if a person is not onljj- insolvent but pressed by his creditors, is known to be dishonest, or to have resorted to the trust funds to relieve his personal obligations although under the guise of loans, or even where he is shown to be too intemperate and too infirm to attend to the duties of the estate, oris a non-resident, a Surrogate may properly reject him. Matter of Cady, 36 Hun, 122 ; Goodenough v. DeGroot, 3 Law Bulletin, 35 ; Kslate ofPetrie, 5 Dem. 352 ; Mutter of Smith, 16 Weekly Dig. 472. Mere poverty it is manifest is no reason for requiring a bond. Ballard v. Gharleswnrth, supra. § ISa. Details of the bond — The form of the bond, should one be required, is similar to that which would be required of an administrator. See chap. 10. It must run in the name of the people {Haight v. Brisbin, 7 Civ. Pro. Eeport, 152; Peo- LETTERS TESTAMENTARY. 605 pU V. Struller, 16 Hun, 234), must be a joint and several bond of the executor and two or more sureties, or a surety company, approved by the Surrogate, in a penalty fixed by the Sun-ugate jiot less than twice the value of the personal propertjf of which the decedent died possessed and of the probable amount to be recovered by reason of any right of action granted to tha execu- tor by special provision of law. Where there is no personal estate and the executor is ordered to give security, the amount of the penalty of the bond is discretionary with the Surrogate, and may be merely nominal. Matter of Hart, 2 Eedf. 156, 158, Coffin, Surr. In fixing the penalty of the bond of the executor, however, a Surrogate must take into consideration the value of the real property or of the proceeds thereof which may come into the hands of the executor by virtue of any provision contained in the will. § 264:5, C. 0. P. But, in such case, the Surrogate may, considering the fact that he can, as fre- quently as the exigency of the case may require, compel the executor to account, fix his penalty in view of the amoant to be received within a reasonable time and not necessarily during the whole period of his administration. Thus, in a case {Mat- ter of Hart, 2 Redf. 156) where the yearly income from the realty was about $30,000, Surrogate Coffin required a bond of $50,000. The bond must be conditioned that the executor will faithfully discharge the trust reposed in him as such and obey all lawful decrees and orders of the Surrogate's Court touch- ins the administration of the estate committed to him. See chap. 10. See § 2664, Code Civ. Proc. ; Holmes v. Cock, 2 Barb. Ch. 426. § 19. Excepting to the sureties. — When the bond has been filed, the usual practice obtains, in the absence of special rules, with regard to excepting to the sufficiency of the sureties. In New York County there is a special rule — Rule 17 — which is as follows : " Wherever a bond with sureties shall be executed by a"n executor, administrator, guardian or other trustee, any person interested in the estate or in behalf of such guardian, may apply to the Surrogate for an order requiring the sureties in said bond to appear before him, or his chief clerk, and submit to an examination under oath as to their sufficiency as such sure- ties. If it shall appear to the satisfaction of the Surrogate that such examination is necessary, he will make an order, prescrib- 606 StTEEOGATES' COtTKTS. ing the time and place where such examination shall take place, a copy of which order shall be served upon such executor, ad- ministrator, guardian or trustee at least five days before the time fixed for such examination. If on such examination the Surrogate shall be satisfied of the sufficiency of such surety he will indorse his approval upon the bond or a copy thereof ; and in case such surety on such examination shall not, in the opinion of the Surrogate, be sufficient, the Surrogate will make an order requiring the substitution of new sureties, within five days after the service of a copy of said order upon the executor, ad- ministrator, guardian or other trustee, or his attorney if he shall have appeared by attorney on such examination." § 20. Failure of executor to qualify or renounce. — The bond required must be filed within 5 days after the objection has been established to the satisfaction of the Surrogate. This necessarily must be manifested by an order whereupon the executor may entitle himself to letters testamentary by giving a proper bond as prescribed by law ; his failure to do so oper- ates just as his failure to qualify after the probate of the will or after his selection under a testamentary power. It operates as an im plied renunciation. The Code covers three cases when an executor fails to renounce or qualify, and fixes the time within which he must qualify. If a person, named as executor in a will, does not qualify or renounce within thirty days after probate thereof ; or if a person, chosen by virtue of a power in the will, does not qualify or renounce within thirty days after the filing of the instrument designating him ; or, in either ease, if objections are filed, and the executor does not qualify or renounce, within five days after they are determined, in his favor, or, in a case specified in section 2638 of this act, within five days after an objection has been established ; the surrogate must, upon the application of any other executor, or any creditor, or person interested in the estate, make an order requiring him to qual- ify within a time therein specified ; and directing that, in de- fault of so doing, he be deemed to liave renounced his appoint- ment. Where it appears, by affidavit or other written proof to the satisfaction of the surrogate, that such an order can- not, with due diligence, be served personally within the state upon the person therein named, the surrogate may prescribe the manner in which it must be served, which may be by pub- LETTERS TESTAMENTARY. 607 lication. If the person, so appointed executor, does not qualify witiiin the time fixed, or within such further time as the surrogate allows for that purpose, an order must be made and recorded, reciting the facts, and declaring that he has renounced his appointment as executor. Such an order may be revoked by the surrogate in his discretion, and letters tes- tamentary may be issued to the person so failing to renounce or qualify, upon his application, in a case where he might have retracted an express renunciation, as prescribed iu sec- tion 2639 of this act. And where any powers to sell, mort- gage or lease real estate, or any interest therein, are given to executors as such, or as trustees, or as executors and trustees and any of such persons named as executors shall neglect to qualify, then all sales, mortgages and leases under said powers made by the executors who shall qualify, shall be equally valid as if the other executors or trustees had joined in such sale. § 3643, Code Civil Proc. § 21. Qualifying. — Section 2645 provides for the next step prior to the issuing of letters in case a bond has been required of the executor and is as follows : An executor from whom a bond Is required, as prescribed in this article, or an administrator with the will annexed, must, before letters are issued to him, qualify as prescribed by law, with respect to an administrator upon the estate of an intestate ; and the provisions of article fourth of this title, with respect to the bond to be given by the administrator of an intestate, apply to a bond given pursuant to this section ; except that, in fixing the penalty thereof, the surrogate must take into consideration the value of the real property, or of the proceeds thereof, which may come to the hands of the executor or administrator, by virtue of any pro- vision contained in the will. § 3645, Code Civil Proc. For fuller discussion of bonds, see chapter X, post. § 22. Requisites of letters. Letters testamentary, letters of administration, and letters of guardianship must be in the name of the people of the state. "Where they are granted by a surrogate, or by an oflB- 608 surrogates' cottets. cer or person appointed by the board of supervisors, tempo- rarily acting as surrogate, they must be tested in the name of the officer granting them, signed by him, or by the clerk of the surrogate's court, and sealed with the seal of the surro- gate's court. "Where they are issued out of another court, they must be tested, in the name of the judge holding the court, signed by the clerk thereof, and sealed with its seal. § 3590, Code Civil Proc. As has already been observed letters are the authenticated evidence of the executor's title ; a failure therefore to comply with the formalities required by statute may vitiate them. Hence where a Surrogate's clerk, without the knowledge of the Surrogate, using a blank to which the Surrogate's name had been signed, issued letters upon the estate of a person who it afterward appeared was not even dead, and the Surrogate not only had no jurisdiction but no knowledge of the proceedings, it was held by the Court of Appeals {Roderigas v. East Riv. Sav. Inst., 76 JS". Y. 316, 324, Church, Ch. J.), that the letters were void, and that the person to whom they were issued was not even a de facto administratrix. On the other hand, it has been held that, while it is essential that letters must be sealed with the seal of the Surrogate's Court, yet there is no time fixed at which the seal is necessarily to be affixed. Prima facie, of course, the intent of the statute is that the instrument, in order to serve the person to whom it is issued as authority for his subsequent acts, should be in due legal form when issued. But in view of the fact that letters are rarely produced except for the purpose of their evidential value to prove the authority of the person to whom they were issued, the courts have held, if, at the time they are offered in evidence, the seal is affixed, the statute is sufficiently complied with. It was so held in a case where, atrial being in progress in which an administrator was plaintiff, his letters were offered in evidence and were objected to on the ground that they were not sealed ; they were thereupon presented to the Surrogate who affixed his seal and then offered anew in evidence. The letters were received by the trial judge, and, on appeal, his act was af- firmed by the General Term. Moloney v. Woodin, 11 Hun, 202. testameutary. LETTERS TESTAMENTARY. 609 THE PEOPLE OF THE STATE OF NEW YORK, Form of letters by the gka.ce op god, feee and independent. To all to whom these Presents shall come or may ConeerQ, send Greeting : Know ye, That at the County of Westchester, on the day of in the year of our Lord one thousand eight hundred and ninety before Surrogate of our said County, the last Will and Testament, deceased, was proved, and is now approved and allowed by us, and the said having been at or immediately previous to death an in- habitant of the County of Westchester, by rea- son whereof the proving and registering of said Will and the granting administration of all and singular the goods, chattels and credits of the said Testat and also the auditing, al- lowing and final discharging the account thereof, doth belong unto us, the administration of all and singular the goods, chattels and credits of the said deceased, and any way concerning Will is granted unto in the said Will named being first duly sworn (or affirmed) faithfully and honestly to discharge the duties of such Execut ac- cording to law. In Testimony Whereof, we have caused the Seal of office of our said Surrogate to be hereunto annexed. Witness Surrogate of our said County, the day of in 'the year of our Lord one thousand eight hundred and ninety. Surrogate. |...} § 23. Letters testamentary, how far conclnsive evidence. -This is regulated by the Code as follows : 39 610 STJKEOGATES' COCRTS. Subject to the provisions of the next section, regulating the priority among different letters, letters testamentary, let- ters of administration, and letters of guardianship, granted by a court or officer, having jurisdiction to grant them, as prescribed in this chapter, are conclusive evidence of the au- thority of the persons to whom they are granted, until the decree granting them is reversed upon appeal, or the letters are revoked, as prescribed in this chapter. § 3591, Code Civil Proc. This section is a re-enactment of the former provisions of the Kevised Statutes (2 E. S. 80, § 56), that letters testa- mentary or of administration or guardianship when granted by a court or officer having jurisdiction, cannot be collaterally attacked in another court. Power v. Burmester, 34 N. Y. St. Eep. 716 ; Lowman v. Elmira, C. d; N. B. R. Co., 85 Hun, 188 ; Mare v. Finch, 65 Hun, 404 ; Roderigas v. East Riv. Sav. Inst., 63 N. Y. 460. Nor can they be attacked collaterally before an- other Surrogate. Matter of Harvey, 3 Redf. 214, 216, citing Bolton V. Brewster, 32 Barb. 390. The presentation by the person to whom letters are issued of such letters establishes prima faoie their validity and his authority. Belden v. Meeher, 47 N. Y. 307. But the wording of section 2591 makes it evi- dent that if the court or officer had no jurisdiction to grant the letters they are not to have the conclusive effect prescribed by the Code. Therefore the jurisdiction of the Surrogate to issue them may be attacked collaterally. Crosier v. Cornell Steam- boat Co., 27 Hun, 215, aff'd 92 N. Y. 626. But this does not mean that an improper exercise of jurisdiction can be attacked where the action of the Surrogate, although irregular or defi- cient, is upon a subject-matter clearly within his jurisdiction. His determination and decree cannot be disregarded collater- ally because of these defects. So, where a Surrogate had clear jurisdiction to grant ancillary letters testamentary, or of ad- ministration, upon the estate of a deceased person, and he had evidence before him tending to establish the facts upon which his authority was by law required to be exercised, while his determination upon that proof might be reversed in an Appel- late Court, yet the issuing of the letters cannot be disregarded nor collaterally attacked. Brown v. Landon, 30 Hun, 57, opin- ion of Daniels, J., at page 59, citing Parhan v. Moran, 4 Hun, LETTERS TESTAMBNTABY. 611 717. This conclusive character, as is stated in section 2591 continues until the decree granting letters is reversed on ap' peal or the letters are revoked. Abbott v. Gurran, 98 N. Y, 665, affirming 20 Week. Dig. 334. See also Leonard v. Co lumhia Steam Navigation Co., 84 N. Y. 48 ; Bolton v. Schriever. 135 N. Y. 65, 70, 74, 75, Peckham, J. ; Kelly v. Jay, 79 Hun 535, 540. See also Taylor v. Syme, 17 App. Div. 517, 520, Van Brunt, P. J. ; Matter of Patterson, 146 N. Y. 327, 330, 331, citing Porter v. Purdg, 29 JST. Y. 106. § 24. Priority among several letters,— It sometimes occurs that Surrogates in different counties, acting independently, grant letters of administration upon the same estate, or that a Surrogate may ignorantly grant letters testamentary upon an estate where another Surrogate has previously issued letters. Where this conflict of jurisdiction occurs the Code provides for a priority of the letters issued first in point of time ; safe- guarding however those who may have acted in good faith with the person to whom the conflicting letters were issued. This is by section 2592, which is as follows : The person or persons, to whom letters testamentary, or letters of administration are first issued, from a sui'rogate's court having jurisdiction to issue them, as prescribed in arti- cle first of title first of this chapter, have sole and exclusive authority, as executors or administrators, pursuant to the letters, until the letters are revoked, as prescribed by law ; and they are entitled to demand and recover from any per- son, to whom letters upon the same estate are afterwards is- sued, by any other surrogate's court, the decedent's property in his hands. But the acts of a person, to whom letters were afterwards issued, done in good faith, before notice of the letters first issued, are valid ; and an action or special pro- ceeding, commenced by him, maybe continued by and in the name of the person or persons to whom the letters were first issued. § 3592, Code Civil Proc. § 25. Disability to receive letters in some cases may be removed. — There are two disabilities which, while they oper- ate to prevent a Surrogate from issuing letters, may neverthe- less be removed before the estate is fully administered, in which case on proof of such facts the person then may become enti- 612 STJRKOGATES' COtTETS. tied to supplementary letters testamentary. The provisions of .the Code are as follows : If the disability of a person under age, or an alien named as executor in a will, be removed before the execution of the provision of such will is completed, he shall be entitled, on application, to supplementary letters testamentary, to be is- sued in the same manner as the original letters, and author- ized to join in the execution of the will with the persons previously appointed. A person named in a will as executor, and not named as such in the letters testamentary or in let- ters of administration with the will annexed, shall be deemed to be superseded thereby, and shall have no power or autiior- ity whatever as such executor until he appears and qualifies. § 3613, Code Civil Proc, first part. The issuance of such letters relates back to the issuance of the first letters except in the cases specified in section 2593, which is as follows : Where it is prescribed by law, that an act, with respect to the estate of a decedent, must or may be done within a speci- fied time after letters testamentary or letters of administra- tion are issued, and successive or supplementary letters are issued upon tlTe same estate, the time so specified must be reckoned from the issuing of the first letters, except in a case where it is otherwise specially prescribed by law ; or where the first or any subsequent letters are revoked, as prescribed in section 2684 of this act, or by reason of the want of power in the surrogate's court to issue the same, for any cause. § 3593, Code Civil Proc. See § 2fi82, C. C. P. § 26. Kevocation of letters. — This subject is discussed fully in chapter IX below, at page 835 et seq. § 27. Surrogate's control of the executor. — It has been noted, at pages 1 and 34, ante, that among the powers of Su- rogates' Courts, they have under section 2472 the power " to direct and control the conduct .... of executors, adminis- trators and testamentary trustees." In the same connection they are given power " to administer justice in all matters re- LETTERS TESTAMENTARY. 613 lating to the affairs of decedents, according to the provisions of the statutes relating thereto." And again, in section 2481, subdivision .5 {ante, page 35), the Surrogate may " require, by order, an executor, administrator, testamentary trustee, or guardian, subject to the j urisdiction of his court to perform any duty imposed upon hiiu hy statute or by the Surrogate's Court, under authority of a statute." It is clear, therefore, that the Surrogate must exercise this power of control as incident to his control of the estates of decedents. He has this power, therefore : {a) Over an executor, subject to the jurisdiction of his court. (b) In respect to the affairs of a decedent's estate under the jurisdiction of his court. (c) In respect of duties imposed by statute. {<£) Or of duties imposed by the court under authority of the statute. Thus, under section 2153 of the Code, the Surrogate may order an executor to become a " consenting creditor " to the discharge of an insolvent from his debts. In Matter of Parher, 1 Barb. Ch. 154, the chancellor reviewed this power of con- trol vested by statute in the Surrogate and limited it to mat- ters in which the executor was acting as such under the juris- diction of the court. And he points out that if in another court or in matters outside .the Surrogate's jurisdiction, his acts or neglects resulted in loss to the estate, the Surrogate had plenary power upon the accounting to call him to ac- count. In Matter of McGabe, 18 N. Y. Supp. 715, Surrogate CoflB.n held that he had no power to compel an executor to bring an action for any purpose in another court and that there Avas no statute conferring such power nor was there any principal power to which it might be regarded to be an in- cident. And he points out that were he to make such an order and the executor disobeyed it, his disobedience could be punished as contempt of court by imprisonment. It is, however, clear that if the action to be brought is one necessary to the preservation of the estate, the Surrogate's power to require the executor to protect those interests may be derived from section 2481, and enforced by reason of the additional power of the Surrogate to remove an executor for cause, including the wasting of the estate. In the case just cited, the learned Surrogate pointed out that he knew of no 614 surrogates' coubts. case in whicli any Surrogate had ever made such an order. But the Court of Appeals {Lichtenberg v. JSerdtf elder, 103 N. Y. 302, 307), held expressly that the Surrogate had ample power to compel an executor to commence an action to ob- tain specific relief for the estate under section 2 iSl of the Code. Unless, therefore, such act outside of the Surrogate's Court is necessary to the preservation of the estate and the refusal to perform it vs^ould be such wasting of the estate as would warrant the removal of the executor, the Surrogate's power to direct it is questionable. In Matter of Parker, supra, the chancellor observed th^t the Surrogate had no power to prohibit the executor from bringing an action in another court. From the limitations above noted it is clear further that if an executor deals with property to which as such he has no right or title, the Surrogate cannot control him in his dealing with the same, as, e. g., he cannot compel him to deliver it to the owner. Ma/rston v. Paulding, 10 Paige, 40, followed in Cal- yer v. Calyer, 4 Eedf. 304. See also Shumway v. Cooper, 16 Barb. 556, where it was expressly held that the statutory right to direct and control the conduct of executors did not give the Surrogate any power in respect to their dealings with property to which they had no right or title as executors or administrators. So again if the executor's acts or neglect complained of to the Surrogate would necessitate, for its determination, his exer- cise of a power not vested in him by statute, he must decline jurisdiction until the question has been determined in a proper court. For example, it is pointed out, ante, at page 11, and cases cited, that a Surrogate cannot set aside for fraud a re- lease given by the party interested in an estate to an executor, neither can he pass upon the validity of a transfer of interest by one person interested to another {Matter of Arhenhurg, 38 App. Div. 473 ; Matter of Redfield, 71 Hun, 344), and com- pel an executor to pay that interest to either of the rival claimants. Matter of Randall, 152 N. Y. 508. See also Sanders v. Sautter, 126 N. Y. 193 ; Matter of Pruyn, 141 N. Y. 544 ; Matter of Monroe, 142 N. Y. 484. And as the Surro- gate cannot pass on a question such as is cognizable only in a court of equity, so he cannot treat as invalid a written agreement, having no power to adjudicate whether or not it was made in fraud. Ihid. LETTERS TESTAMENTARY. 615 § 28. Same sulbject. — The Surrogate's power of control of executors extends not only to compel them to perform duties imposed by statute or by himself under authority of statute, but further extends to protecting the executors in their rights, not only as representing the estate against third parties, but as against one another, if there be more than one. For ex- ample, section 2602 of the Code provides as follows : "Where two or more co-executors or co-administrators disagree, respecting the custody of money or other property of the estate ; or two or more testamentary trustees or guard- ians of the property disagree, respecting the custody of money or other property, belonging to a fund or au estate which is committed to their joint charge ; the surrogate may, upon the application of either of thein, or of a creditor or person interested in the estate, and proof, by afHdavit, of the facts, make an order, requiring them to show cause, why the surrogate should not give directions in the premises. Upon the return of the order, the surrogate may, in his discretion, make an order, directing that any property of the estate or fund be deposited in a safe place, in t\& joint custody of the executors, administrators, guardians or testamentary trustees, as the case requires, or subject to their yoira^ order ; or that the money of the estate be deposited in a specified safe bank or trust company, to their joint credit, and to be drawn out upon their joint order. Disobedience to such a direction may be punished as a contempt of the court. § !<260S, Code Qi\\\ Proc. Thus the books of an estate belonging to the testator and containing entries in regard to his property are the common property of all the exeoiitors, and any one of them has an equal right to inspect and copy such books. Accordingly it has been held that where certain of the executors refused this right to another co-executor, he might apply for an order under this section of the Code to the Surrogate, directing the other exe- cutor to show cause why the Surrogate should not give ap- propriate direction in the premises. Matter of Stern, 33 Misc. 542 (see also post, page 1357, as to testamentary trus- tees). In the case just cited it w^as held proper to proceed on 616 SUBROGATES COURTS. affidavit and order to show cause, and that there was no requirement in the section calling for the presentation of a petition and the issuance of a citation. The remedy is summary and enables the Surrogate to enforce the safeguarding of the estate or fund in that the section provides that disobedience to such direction as the Surrogate may make in the premises, which direction is discretionary, maybe punished as a contempt of court. § 29. Same subject. — This power of control may be con- cisely said to comprehend the power to compel an executor to do whatever the law requires him to do. Seaman v. Duryea, 10 Barb. 523. Thus, as the law requires them to execute the testator's will, it is properly held that the Surrogate has power to compel executors to perform what is their manifest duty under said will. Dubois v. Sands, 43 Barb. 412. So, in Wood V. Brown,Zi:^. Y. 337, the principle above noted is laid down that the Surrogate may interfere to control the conduct of an executor in case he refuses to perform the duties which the law casts upon him and which are necessary to preserve the estate. And in that case it is stated that this power can only be in- voked in aid of some regular proceeding which the statute authorizes to be begun against executors and administrators, and the court proceeds, " The Surrogate cannot, for instance, prevent an executor from bringing or prosecuting a suit nor can he interfere with an executor to control him while in the orderly discharge of his duties." So in Estate of Sarah Hast- ings, N". Y. Law Jour. June 27, 1902, it was held that a Surro- gate would not overrule the decision of an executor in good faith except upon proof that his conduct is inconsistent with the honest and faithful discharge of his duties. This case involved a refusal to satisfy a mortgage. The court referred to its power of removal if a proper case were made out, citing Banning v. Gunn, 4 Dem. 337, 339. The question has usually arisen where the executor in the exercise of his right to control the assets and to dispose of them without the co-operation of his associate {Douglass v, Satterlee, 11 Johns. 16 ; Arhenhurg v. Arkenburg, 27 Misc. 760, 762 ; Wheder v. Wheeler, 9 Cow. 34 ; Hertell v. Bogert, 9 Paige, 52 ; Brennan v. Lane, 4 Dem. 322, 328), is sought to be restrained at the instance of a co-executor. Section 2602 now provides what may be done in the cases specified therein in LETTERS TESTAMENTARY. 617 this regard, but even this section does not give the court a right to interfere with the " orderly exercise of his rights " by an executor. So in Brennan v. Lane, supra, Rollins, S., says at page 328 : " The general right of an executor or ad- ministrator to sell at his pleasure the personal property of his decedent's estate in order to provide means for the payment of debts and of legacies or of distributive shares, is of course, well settled," citing Rogers v. Squires, 26 Hun, 388; Bradner V. Faulkner, 34 N. Y. 347 ; Sherman v. Willett, 42 N. Y. 146 ; and so in that case he held that the decision of the question whether an immediate sale of a livery stable property was advisable or whether it should be delayed for three months, involved " the exercise of ordinary administrative functions with whose orderly discharge the Surrogate is powerless to in- terfere." In Matter of Gilman, 41 Hun, 561, the power of the Surrogate was upheld on the authority of Wood v. Brown, supra, and Jenkins v. Jenkins, 1 Paige, 243, to compel an exec- utor to deposit securities in a trust company, on the ground that they were not entirely free of risk while remaining in his possession. In Chambers v. Oruihshank, 5 Dem. 414, Eollins, S., constru- ing section 2602 of the Code, which he intimated had been enacted as the result of the decisions in Wood v. Brown, 34 IST. Y. 337, and Burt v. Burt, 41 IST. Y. 46, passed upon this question of joint control 6f the securities of an estate and ob- serves at page 419 et seq. " It is a well known doctrine of the law that where there are two or more executors of an estate, tliej'^ are regarded but as one person representing the testator, and therefore the acts done by any one of them, which relate either to the delivery, gift, sale, payment, possession or release of the testator's goods, are deemed the acts of all ; for they have a joint and entire authority." One of them is as much entitled as any of the others, in the absence of specific directions to the contrary, either in the will of their testator, or in the lawful order, judg- ment or decree of a competent court, to collect the personal estate and to hold it in his own possession, apart from the con- trol of his associates. {Murray v. Blatchford, 1 "Wend. 583, 616; Hertell v. Bogert, 9 Paige, 52; Douglass v. Satterlee, 11 618 surrogates' courts. Johns. 16 ; Sutherland v. Brush, Y Johns. Ch. 17 ; Brennan v. Lane, 4 Dem. 322; Hall v. Carter, 8 Ga. 388; Wheeler v. Wheeler, 9 Cow. 34.) He continues : " But it seems to me that, in the enactment of the provision upon which the present application is based, it was the express purpose of the legislature to modify the rule of law, which, but for that provision, might make such an ap- plication, either to the Supreme Court or to the Surrogate, ineffectual. " In Burt V. Burt, the court said that, as the relations of the plaintiff executor and the defendant executor had ceased to be amicable, ' it would have been altogether wise and suit- able,' if they had of their own motion made joint deposit of the funds which the testator had confided to their charge. " This suggests what seems to me the most satisfactory test by which to determine, in any given case, whether the discre- tionary authority, now expressly conferred upon the Surrogate by section 2602 of the Code, should or should not be exercised. The occasion for enforcing a joint custody is found to have arisen, whenever the circumstances are such that joint custody, pursuant to an agreement of the executors themselves, would commend itself to the Surrogate as suitable and wise. " Now, there is nothing in the will of this testator indicat- ing that he reposed greater trust and confidence in one of the parties to this proceedings than in the other ; there is nothing in the papers before me tending to Show that it would impair the security of the property of the estate to take it from the sole custody of the respondent and place it in the joint custody of himself and his associate. For aught that appears, they can meet together without inconvenience whenever conference or combined action shall be necessar}'^ or desirable. It is not shown that the interests of the estate would be prejudiced by requiring a joint custody of its assets. And there are certain considerations which seem to make such joint custody desir- able." Applying this test, it is clear that it is not a matter of course to require the joint deposit of estate securities ; the applicant must still make out a case calling for the Surrogate's interfer- ence and showing that the preservation of his rights and inter- ests or of those of others require the favorable exercise of the tiETTBES TESTAMENTARir. 619 discretion vested in the Surrogate. Matter of Adler, 60 Hun, 481. With the exercise of that discretion the Appellate Court will not interfere unless it is apparent that it has been abused. Ilid. CHAPTER II. LETTEES OP ADMINISTRATION WITH THE WILL ANNEXED. § 1. What is an administrator with the will annexed. — Wherever there is a will duly admitted to probate its directions as to the administration of the estate thereby devised or be- queathed are controlling in so far as they are consistent with testamentary law. We have already discussed the cases in which an executor may renounce his appointment. We are later to discuss the instances in which an executor may be re- moved. Cases may thus exist where the will names no execu- tor, or where, having named an executor, he has either died, renounced, or been removed. The Code provides for the carry- ing into effect of the directions of the will notwithstanding the happening of any of these contingencies, by the appointment of an administrator, who unUke other administrators (who must act according to the statute in the distribution of the estate), takes the estate as administrator " with the will annexed " and administers or distributes it just as if he had been named as executor in the will. This distinction has been well defined by the Court of Appeals {Casoni v. Jerome, 58 N. Y. 315, at page 320), by Andrews, J., as follows : " The position of a gen- eral administrator and an administrator cum, testamentum (sic) cmnexo, differ in this : that in the latter case, the will, so far as it is consistent with law, is the rule for the management and distribution of the estate, and in the former the ultimate right to the personal assets is regulated by the statute of distribu- tion." The provisions of the Code are as follows : If no person is named as executor in the will, or selected by virtue of a power contained thereio ; or if, at an}' time, by reason of death, incompetency adjudged by the surrogate, renunciation in either of the methods prescribed in section two thousand six hundred and thirty-nine and two thousand six hundred and forty-two of this act, or revocation of letters, there is no executor, or administrator with the will annexed, qualified to act ; the surrogate must, upon the application of (620) LETTERS OP ADMINISTRATION WITH WILL ANNEXED. 621 a creditor of the decedent, or a person interested in the estate of the decedent, or having a lien upon any real property upon which the decedent's estate has a lien and upon such notice to the other creditors and persons interested in the estate, as the surrogate deems proper, issue letters of administration ■with the will annexed, as follows : 1. To one or more of the residuary legatees, who are qual- ified to act as administrators. If any one of such legatees who would otherwise be so entitled is a minor, administration shall be granted to his guardian, if competent. 2. If there is no such residuary legatee or guardian, or none who wiU accept, then to one or more of the principal or speci- fied legatees, so qualified. If any one of such legatees who would be otherwise so entitled is a minor, administration shaU be granted to his guardian, if competent. 3. If there is no such legatee or guardian, or none who wiU accept, then to the husband, or wife, or to one or more of the next of kin, or to one or more of the heirs or devisees, so qualified. (See post, page 633, § 10, and § 2660, Code, at p. 684.) 4. If there is no qualified person, entitled under the fore- going subdivisions, who will accept, then to one or more of the creditors who are so qualified, except that in the counties of New York and Kings the public administrator shall have preference, after the next of kin, over creditors, and all other persons. 5. If there is no qualified creditor who wiU accept, then to any proper person designated by the surrogate. § 3643, Code Civil Proc. This section was amended, L. 1901, chap. 141, in respect of guardians of minors, otherwise entitled, taking the letters which the infants but for minority would have taken. This super- sedes the rule laid down in such cases as Matter of Milhau, decided in 1899, 28 Misc. 366, where a general legatee was pre- ferred to the corporate guardian of an infant residuary legatee. In Matter of Hang, 29 Misc. 36, the executor of a sole legatee was preferred to a nephew of testator, whose father died after the testator, his brother. This was on the ground that the son was not, under these cirou instances, entitled in his own right, under the definition of next of kin in section 2514, subd. 12, " to share in the unbequeathed residue," etc. 622 SUBBOGATES' CO0BTS. Under subdivisions 3 and 4, reference should be had to the provisions of section 2660 giving certain priority in New York over public administrator to the executor or administrator of a deceased sole legatee. See page 635, post. § 2. When the appointment of snch an administrator c. t. a. is proper. — This section discloses six cases in which an appointment of an administrator with the will annexed is proper : {a) When no person is named executor in the will. {b) When the will contains provision for the selection of the executor by virtue of a power and the power is not exercised "within the time specified by section 2640, or in the manner re- quired by that section. (o) Where the executor named dies, either before or after receiving letters. {d) Where objections to an executor, named in a will, or selected under a power, are made and sustained under sec- tions 2636, 2637 and 2641, Code Civ. Proo. ie) Where the executor named renounces under section 2639 or 2642, Code Civ. Proc. {f) Or where the executor having qualified has been guilty of such conduct as to require the Surrogate to revoke his let- ters. It might be added, as a seventh instance, where there has already been an administrator with the will annexed who has died or whose letters have been revoked, as of course he must be succeeded by a similar officer if his duties in regard to the estate have not been completed. § 3. Administrator with the will annexed not proper in certain cases of trusts. — But it must be noted, at the outset, that an administration c. t. a. is not contemplated in cases other than those of mere administration of an estate. Such an ad- ministrator c. t. a. succeeds only to the powers which the exec- utor had or would have had under the will. Consequently where the will creates certain trusts and appoints trustees, an administrator with the will annexed is not a proper officer to succeed to these trusts in the event of the removal or death or failure from any other cause to act, of the persons named as trustees. The mere fact that the executor is also designated trustee is immaterial in this connection, for, if his former duties as executor have terminated, and at the time of his death, re- moval, or cessation to act for any other cause he has entered LETTERS OP ADMINISTRATION WITH WILL ANNEXED. 623 ali'eady upon the execution of the testamentary trusts, he must be succeedec^ by a substituted or successor trustee, and not by an administrator c. t. a. So, where an executor had qualified and performed all the duties of his office up to the point of ascertaining the amount of the residuary estate which was left to him in trust, although such residuary estate had not already been sold, converted and reinvested, yet there only remained trust duties to be performed, it was held, by Surrogate Silkman {Matter of Curtis, 15 Misc. 5i5, 553, 554, aff'd 9 App. Div. 285, 294), that it was not a proper case for the appointment of an administrator with the will annexed. Therefore it is im- portant to differentiate between those functions of a trust char- acter or otherwise which vest in an executor and those which belong to a testamentary trustee. A person named in a will as executor and trustee both may be removed in one capacity and continue to exercise his functions in the other capacity. The acceptance of his resignation as trustee or even his removal as trustee will not have the effect to relieve him from the execu- tion, so far as it remains unexecuted, of any duty devolved upon him by virtue of the office of executor. Greenland v. Waddell, 116 N. Y. 234, 243, citing 1 Perry on Trusts, sec- tion 281 ; In re Van Wyah, 1 Barb. Ch. 565 ; Quakenhoss v. Southwich, 41 N. Y. 117. Take, for example, a power to sell contained in a will. The Code provides by the latter paragraph of section 2613, that, Wfiere letters of administration with the will annexed are granted, the will of the deceased shall be observed and per- formed ; and the administrators, with such will, have the rights and powers and are subject to the same duties as if they had been named executors in the will. This section is similar in wording to that of the Revised Statutes (2 E. S. 72, § 72), which has been frequently con- strued by the courts. De Peyster v. Olendinning, 8 Paige, 296 ; ConUin v. Egerton, 21 Wend. 430 ; 25 id. 224 ; Roome v. Philips, 27 ]Sr. Y. 357 ; Bain v. Matteson, 54 N. Y. 663 ; Bing- ham v. Jones, '2i?> Hun, 6. " The debate has turned mainly upon the inquiry what were the distinctive duties of an executor as such, and when they were to be regarded as not appertaining to his office, but as personal to the trustee. "Where the will gives 624 SUBKOGATES COUBTS. the power to the donee in a capacity distinctively different from his duties as executor, so that as to such duties he is to be re- garded wholly as trustee and not at all as executor ; and where the power granted or the duty involved imply a personal confi- dence reposed in the individual over and above and beyond that which is ordinarily implied by the selection of an executor, there is no room for doubt or dispute. In such case the power and duty are not those of executors, virtute officii and do not pass to the administrator with the will annexed. But outside of such cases the instances are numerous in which by the operation of a power in trust, authority over the real estate is given to the exec- utor as such and the better to enable him to perform the require- ments of the will." An executor is always a trustee for the personal estate for those interested under the will. Wager v. Wager, 89 N". Y. 161. But when a power of sale is given to an executor for the purpose of paying debts and legacies, or either, and, especially, where there is an equitable conversion of land into money for the purpose of such payment and for distribution, and the power of sale is imperati/oe, and does not grow out of a pei-sonal discretion confided to the executor, such power belongs to the office of executor and must pass to and be exercised by an administrator with the will annexed, whose deed will be as effec- tual as would have been that of the executor had he survived. Clifford V. Morrell, 22 App. Div. 470 ; Mott v. Ackerman,^^ N. Y. 539, 554 ; Carpenter v. Bonner, 26 App. Div. 462. So that, where an executor has not executed his power, although he may have been removed as trustee, should his office as executor determine for any of the reasons specified in section 2643, the court cannot appoint a trustee to succeed him in the exercise of his functions as executor but must appoint an administrator with the will annexed. Greenland v. Waddell, supra, opinion of Bradley, J. But it is to be noted, in what has been stated above, that a dis- cretionary power of sale cannot be executed by an administra- tor c. t. a. Simmons v. Taylor, 19 App. Div. 499, 503. Such a discretionary power can on the death or removal of the exec- utor be executed only under the direction of the court by a trustee appointed for the purpose. CooJce v. Piatt, 98 N. Y. 35, 39, citing Leggett v. Hunter, 19 JST. Y. 445, and cases cited ; Roome v. Philips, 27 K. Y. 357. But it seems that where a testator conferred a power in trust or any other trust upon his executor adding words indicating his intention that such trust should be LETTERS OP ADMINISTRATION WITH WILL ANNEXED. 625 performed in case of his executor's death by such person as should succeed him as executor, in such case the administrator with the will annexed must execute such powers or trusts. So, while it is the rule that an administrator with the will annexed cannot in that character execute powers and trusts which were personal to his predecessor, the executor {Beekman v. Bonsor, 23 N. Y. 303, Comstock, Ch. J.), yet where a testator directed the execution of a certain trust by " ray said executor or those administering my said estate," it was held {Matter of Baker, 26 Hun, 626, Hardin, J.) that this was a sufficiently definite des- ignation of a person intended to administer the estate after the death of the designated executor with the rights and powers of an executor (citing Holmes v. Mead, 52 N. Y. 343), and, ac- cordingly, an administrator with the will annexed succeeded to the trust and an application to appoint a trustee to administer the trust was denied. See Matter of Post, 9 N. Y. Supp. 449. The general rule, then, may be stated to be that, where the pro- vision defining the trust, when considered separately, or in connection with the rest of the will is imperative {Clifford v. Murrell, 22 App. Div. 470), or evidences no intention on the part of the testator of reposing any such special or personal confidence or discretion in the executors as would dissociate the trust confided to them from their office as executors, or prevent them from fully administering it, an administrator c. t. a. will be entitled to complete the execution of the trust. Matter of Post, 9 N. Y. Supp. 449, opinion of Ransom, Surr., citing Hood V. Hood, 85 N. Y. 561, 571 ; Mott v. Aekerman, supra ; Bain v. Matteson, supi'a ; Matter of Clark, 5 Redf . 466. § 4. Who may apply for appointment. — Section 2643 names three classes of persons who may make the application to have an administrator with the will annexed appointed. (a) Creditors of the decedent. {b) Persons interested. (c) A person having a lien upon any real property upon which the decedent's estate has a lien. Under the first head of creditors of the decedent, one who subsequently becomes a creditor to the estate in the hands of the executors is not included. Fowler v. Walter, 1 Dem. 240, 243, Rollins, Surr. § 5. What confers jurisdiction on the Surrogate. — The application for administration with the will annexed is usually 40 626 surrogates' courts. made to the court of the Surrogate who issued the original let- ters testamentary or who had jurisdiction of the probate of the will. But there are cases where a will has been proved in a foreign judicatory, assets of the estate being in this State which have not been administered under the principal administration. In such a case a New York Surrogate would have power to entertain an application not only for ancillary administration such as is covered by art. 7, of title 3, of chapter 18, which is dis- cussed hereafter, but for the principal letters of administration with the will annexed. The practice existed before the enact- ment of the Code, and Surrogate KoUins held that it is not abolished by the Code. Hendrickson v. Ladd, 2 Dem. 402. In this case a will had been proved in California and letters granted thereon ; exemplification of the will and of the proceedings for probate thereof in the Probate Court of the county of San Francisco were produced and filed, together with an instru- ment whereby the executors in California renounced their right to administer in the State of New York ; the will was then re- corded as a will of real and personal property ; the petitioner, the widow of decedent and residuary legatee under his will, filed a petition alleging the facts as to the probate of the will and the qualifying of executors in the State of California and the existence of assets in the Count}' of New York of the value of $4U0, which had not been administered upon. Letters of administration with the will annexed in the ordinary form of local or domiciliary letters (except that they purported to be issued upon an exemplified copy of the decedent's will and upon the renunciation of the executors) were issued to the petitioner ; and subsequently, in proceedings to dispose of the decedent's real estate, and refusal by certain purchasers to take title on the ground that the administratrix must be held an ancillary administratrix and, therefore, prohibited b^^ sec- tion 2702 of the Code from instituting proceedings to dispose of the real property of the decedent. Surrogate Rollins upheld the regularity of the practice in procuring the letters c. t. a., and held that the administratrix was a domiciliary administra- trix with the will annexed, and was not within the prohibition contained in section 2702. § 6. Same subject — It was held by Chancellor Kent in Goodrich v. Pendleton, 4 Johns. Ch. 549, that where a person died without the State the Surrogate had no power to grant LETTERS OF ADMINISTRATION WITH WILL ANNEXED. 627 letters of administration with the will annexed. This rule how- ever no longer holds under the changes in the law that have since taken place, for a Surrogate can now acquire jurisdiction by reason of other facts than the residence or place of death of the testator ; and so, if there are assets within the State, such as a debt due the decedent or a chose in action, the Surrogate may assume jurisdiction. Hay ward v. Place, 4 Dera. 487, affirmed 105 N. Y. 628, Eollins, Surrogate. So where the decedent re- sided in Hayti and his will, having been duly admitted to pro- bate in that Republic, and authenticated copies thereof were produced, the Surrogate of New York assumed jurisdiction to admit the will on the authenticated copy and issued letters of administration with the will annexed on the ground that the decedent had left assets within that county. The assets in that case consisted of a claim against a third person with whom it was alleged the decedent had deposited moneys. The Greneral Term upheld his action and said that " the claim itself, if made in good faith, is assets without reference to the final result of a suit upon it." Sullivan v. Fosdlok, 10 Hun, 173, 180, Da- vis, P. J. Before discussing the question of right of priority to have letters of administration with the will annexed, it is proper to indicate more fully the practice in securing such letters. Where all the executors or all the administrators, to whom letters have been issued, die, or become incapable, as pre- scribed in section 2692 or the letters are revoked as to all of them ; the surrogate must grant letters of administration to one or more persons as their successors, in like manner as if the former letters had not been issued ; and the proceedings to procure the gi'ant of such letters, are the same, and the same security shall be required, as in a case of intestacy, ex- cept that the surrogate may, in his discretion, in case where the estate has been partially administered upon by the for- mer representative or representatives, fix as the penalty of the bond to be given by such successor or successors, a sum not less than twice the value of the assets of the estate re- maining unadministered. § 3693, Code Civil Proc. Reference must, in this connection, be also had to sec- tion 2645, which provides that an administrator with the will annexed must quahfy as prescribed in section 2664, but that, 628 StJBROQATBS" COURTS. ia case of an administrator with the will annexed, the Surro- gate, in fixing the penalty of the bond, " must take into con- sideration the value of the real property, or of the proceeds thereof," which may come into such administrator's bands by virtue of any provision contained in the will. But the refer- ence to section 2664 does not extend the power given to the Surrogate to accept reduced security in certain cases from ad- ministrators in chief, to administration with the will annexed. See Estate of LeRoy, 16 Civ. Proc. Eep., 343. On the other hand, while tbe sections above recited literally require an ad- ministrator c. t. a. to give a bond in a penalty of not less than twice the value of the personal propertj' of which the decedent died possessed, yet if such administrator is also administrator de bonis non, these sections have been construed as fixing the minimum penalty of the bond as double the value of tbe prop- erty left unadministered. Sutton v. Weeks, 5 Kedf. 353. See Matter of Nesmith, 6 Dem. 333. § 7. Practice upon application. — The statement made above may be amplified by stating that any one of the persons stated in section 2643, as entitled to letters of administration, may make the application. The proceedings to secure such letters must be initiated by petition in the case covered by sec- tion 2644, which is as follows : But where a person applies for letters of administration with the will annexed, as prescribed in the last section, and another person has a nght to the administration prior to that of the petitioner, the application must be made by petition, unless a written renunciation of every person having such a prior right, is filed with the surrogate, and the execution thereof is proved to his satisfaction. The petition must pray that all the persons having a prior right, who have not re- nounced, be cited to show cause, why administration should not be granted to the petitioner. The proceedings thereupon are the same, as upon an application for administration upon the estate of an intestate. § ;3644, Code Civil Proc. But the wording of section 2644 warrants the inference that in any other case, i. e., where the petitioner is the one having the prior right, his application may be informal, and the man- ner and form thereof and of the notice the Surrogate may direct him to give to other parties interested may be such as LETTBBS OF ADMIKISTKATION WITH WILL ANNEXED. 629 the Surrogate may direct. Estate of Brooks, i Law Bull. 8. The best practice is, however, in any event to file a petition containing allegations first establishing that occasion exists for the grant of such letters, defining .the relationship of the peti- tioner, and stating whether there are, or are not, persons with a right to administer prior to that of the petitioner, and if there are, praying that the Surrogate make such direction in the premises as he deems necessary as to the manner and time of notice to be given the other parties interested if any be cited or alleging that they have renounced. Where there is an allega- tion of renunciation the written renunciation duly executed must be filed with the petition.. The form of such petition is here indicated : Petition f o r letters of admin- istration with the will annexed. Surrogate's Court, County of Westchester. In the Matter of Administra-'' tration, with the Will annexed, of the Goods, Chattels and Credits left unadministered, which were of Deceased. To the Surrogate's Court of the County of Westchester : The Petition of of the of respectfully show that he a of late of the of said County, deceased, who departed this life in the of on the day in the year one thousand eight hundred and leav- ing a last Will and Testament, in and by which he appointed executor thereof. That the said last Will and Testament was duly ad- mitted to probate by the Surrogate of the County of Westchester, on the day of 18 and LETTEES TESTAMENTARY thereou duly issued to the said And your petitioner further show that the said the executor named in said Will, ha departed this life, leaving property and assets of the said testator unadministered. That your 630 SUEEOGATES' COURTS. A. ^io petitioner has to the best of ^ -^ability, esti- mated and ascertained the value of the real and personal estate of the said testator still unadmin- istered, and that the same will not exceed in value the sum of personal property aud real property, that the value of the real property coming into the hands of the Admiuis- trat\5^^ with the Will annexed of the said last Will and Testament will not exceed the sum of dollars, according to the best of your peti- tioner's information and belief. Your petitioner further show that the said testat^JvNiat or immediately previous to ' death, was a resident of the County of Westchester, That your petitioner is of full age. On information and belief that said testator left him surviving the following and only persons having (or claiming to have) a prior right to your petitioner, to letters of administration with the Will annexed, to wit : / ... {If there are persons having such prior right and they have renounced, state the fact, and that and have renounced such right by renunciation duly executed and intended to be filed herewith.) That the following named persons have an equal right with your petitioner to letters of ad- ministration with the Will annexed, to wit : ( Where there are persons having a prior right who have not renounced, the petition must pray that they be cited to show cause why administra- tion should not be granted to the petitioner.) Your petitioner therefore pray that letters OF ADMINISTRATION, with the Will annexed, of the goods, chattels and credits of the said ;/ deceased, so left un administered as afore- said, may be granted to your petitioner in pur- suance of the statute in such ease made and provided. Dated this day of 189 LETTERS OF ADMINISTRATION WITH WILL ANiTEXED. 63l State of New York, ) L go • County of Westchester, ) " " I the petitioner named in the foregoing petition, being duly sworn say that I have read the foregoing petition subscribed by me, and know the contents thereof, and that the same is true of my own knowledge, except as to the matters therein stated on information and belief, and as to those matters I believe it to be true. Sworn to before me, this ) day of 189 | {Note.) Note. The oath required is sub- stantially identi- cal with that of an administrator. Letters of ad- ministration with the will an- nexed. The People of the State of New York, To Send gkeeting : Whereas, lately departed this life, hav- ing previously duly made and executed last Will and Testament ; And Whereas, said Will was on the day of in the year one thousand eight hundred and duly admitted to probate by Esquire, Surrogate of the County of Westchester, and Letters Testamentary having duly issued to of the executor named in said will, and said Executor having on the day of 18 departed this life {or, having been removed from his said oflSce by an order of this court made the day of 18 ), and having petitioned this court for Letters of Administration with the said Will annexed, and it appearing to our satisfaction that said is entitled to receive the same, and the said having taken the oath of office, and executed a bond as required by the decree ap- pointing and filed the same with the clerk 632 surrogates' courts. of this coui't ; and we being desirous that said Will should be observed and performed, and that the goods, chattels, and credits of said Testat should be well and faithfully administered, ap- plied and disposed of, do grant unto you the said fuU power and authority, by these presents, to administer and faithfully to dispose of all and singular the said goods, chattels, and credits, and to ask, demand, recover and receive, the debts which unto the said Testat whilst living and at the time of death did belong, and to pay the debts, which the said Testat did owe, as far as such goods, chattels, and credits will thereto extend, and the law require ; hereby re- quiring you to observe and perform the said last Win and Testament, and to observe and perform aU the duties to which you would have been sub- ject if you had been named Execut thereof. And we do by these presents, depute, constitute, and appoint you, the said Administrat with the Will annexed, of all and singular the goods, chattels, and credits, which were of said deceased. In Testimoky Whereof, we have caused the Seal of Office of our said Surrogate to be hereunto affixed. Witness, Surrogate of said County, at the town of White Plains, this day of in the year of our Lord one thousand eight hundred and Surrogate. § 8. Same subject. — The real intent of section 2644 is to provide for the citation of certain parties who are thereby de- clared to be entitled to notice of the proceeding before the Sur- rogate. It has been held that where, for example, a residuary legatee qualified to act as administrator, that is to say, a person belonging to the class first in order of priority under sec- LETTEES OF ADMINISTEATION WITH WILL ANNEXED. 633 tion 2643, applied for letters of administration o. t. a., he was under no obligation to cite any other person as there could be no other person having a right prior to his own not even a per- son who was also a residuary legatee. Matter of Wood, 17 N. Y. Supp. 354, Ransom, Surr. ; Matter of Richardson, 8 Misc. 140. The Surrogate however has full power upon such an applica- tion to direct notice to be given to creditors or persons inter- ested if he believes it necessary. § 2643, Code Civ. Proc. The proper form of petition as was indicated by Surrogate Rol- lins in Batohelor v. Batchelor, 1 Dem. 209, is one that prays for the issuance of letters of administration to the petitioner. The learned Surrogate held that a petition asking that letters should issue to some third person such as the public administrator was improper ; but it is clear, in the first place, that the petitioner must either bring himself within section 2643 {Matter of Allen, 2 Dem. 203) ; or, in the second place, if there are those having prior right, their written renunciation should be filed ; or, in the third place, if they are not so filed, the petitioner must pray that they be cited to show cause why administration should not be granted to the petitioner. Such citation having then been duly issued and served, upon the return day, if such person having a prior right appear, and insist upon that right, the Sur- rogate will have jurisdiction to appoint such person in lieu of the petitioner. "Were it not for the high authority of the Sur- rogate who decided the Batohelor case it would be suggested as perfectly regular that a creditor, for exaynple, desiring to facil- itate the collection of his claim from the estate which was so circumstanced as to require the appointment of an administrator with the will annexed and not desiring such appointment him- self should file a petition stating his interest and giving the names of persons having a prior right to administer if any, and praying for the appointment of such a person. But under the practice indicated by Surrogate Rollins the creditor must take the risk of being appointed the administrator, and of subjecting himself to the responsibility of distributing the estate in case none of the persons having a prior right appear and assert such right upon the return day. § 9. Priority of claim to letters. — Section 2643 defines the order of precedence in right in which various classes of persons interested in the estate of the decedent and creditors stand in relation to the right of administration c. t. a. This section is 634 StrHKOGATEs' COURO^S. not to be confused with section 2660 which provides the order in which relatives of the decedent are entitled to letters of ad- ministration in cases of intestacy, which will be discussed later. The statute must be strictly followed, and if application be made by a person showing himself to have priority, letters must be issued by the Surrogate. Matter of Manley, 12 Misc. 472 ; Matter of Place, 105 IST. Y. 629. Letters of administration with the will annexed can only be denied to one otherwise entitled for some cause constituting a statutory disqualification. Matter of Place, 105 N. Y. 629, afl'g 4 Dem. 487. The nature of such disqualification has been held to be defined by sec- tion 2661 which defines the incompetency which will prevent letters of administration generally. Letters of administration shall not be granted to a person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to a person not a citizen of the United States, unless he is a resident of the state, nor to a person under twenty-one years of age, or who is adjudged incompetent by the surrogate to execute the duties of such trust by reason of drunkenness, improvidence or want of un- derstanding. § 3661, Code Civil Proc. It will be noted that the disqualifications differ slightly from those contained in section 2612, relating to executors ; the differ- ence is merely formal however, the grounds of objection are sub- stantially identical. The clause contained in section 2612 and omitted in section 2661 is by its terms applicable to cases of administration, since it reads as follows : " A Surrogate in his discretion may refuse to grant letters testamentary or of ad- ministration to a person unable to read or write the English language." Care must be taken not to refuse the right of ad- ministration and priority fixed by the statute in case of admin- istration c. t. a., with the rule which the statute provides (see § 2693, Code Civ. Proc), regarding the preference of persons as ancillary administrators with or without the will annexed, where persons may be preferred who come into the courts of our State showing a right under judicial proceed- ings in a foreign country to the possession of the personal property of the decedent, or where they represent such a per- son by legal power. § 10. Eepresentative of one entitled to letters is entitled LETTERS OF ADMINISTRATION WITH WILL ANNEXED. 635 where decedent so entitled was sole legatee. — It seems that the English rule has been and still is that where the residuary legatee survives the testator and has a beneficial interest, his representative has the same right of administration cum testa- mento annexo as the residuary legatee himself and is there- fore entitled to administration in preference to the next of kin or to legatees. Williams on Executors, 465. At first, under the Code, the courts denied the right of the repre- sentative of such legatee to letters in preference to those named in the statute as, entitled in case there be no residu- ary legatee or none who will accept. Kircheis v. Scheig, 3 Eedf . 277 ; Matter of Allen, 2 Dem. 203 ; Lathrop v. Smith, 24 N. Y. 417 ; Matter of Brown, 2 Connoly, 386. But sec- tion 2660 of the Code, as now amended, has been held apph- cable in several respects to administration under a will. See Matter of Moehring, 24 Misc. 418. And so, in Matter of Haug, 29 Misc. 36, 38, Fitzgerald, S., held that it was simi- larly applicable in respect to the provision incorporated in it that " letters of administration shall also be granted to an executor or administrator of a deceased person named as sole legatee in a will." He pointed out that section 2660 gives " the public administrator in the city of New York preference, after the next of kin, and after an executor or administrator of a sole legatee named in a will, whereby the whole estate is de- vised to such deceased sole legatee, over creditors and all other persons." Accordingly he preferred the executor of such de- ceased sole legatee to the son of decedent's brother who died after testator, and revoked letters originally granted to such nephew. But he also held that as there was living a sister of testator, next of kin, she had a right under subd. 3 of section 2643 prior to that of the executor of the deceased sole legatee, and he granted her the right to retract a renunciation made by her when the nephew originally applied for letters. With this in mind, it is clear that section 2643 {q. v., ante, at p. 620), prescribes the order of priority, so if there are none of the first class available then the right passes to the next class and not to the representatives of the first class, and so on, until the case contemplated by subd. 4 is reached, which is applicable as it reads, unless the exceptional case covered by section 2660, above discussed, exists. Section 2693, which de- clares that the proceedings in procuring letters of administra- 636 surrogates' coitets. tion c. t. a., for the successor of the original holder or holders of letters shall be the same as in cases of intestacy does not change the order of priority established by section 2643, but simply indicates the practice which must be followed by the person entitled to letters in order to obtain their issuance. Hayward v. Place, 4 Dem. 487, 490, Eollins, Surr. § 11. Priority among persons of the same class.— Where several persons apply for appointment or are available, all be- longing to the same class, there being none of a class priorily entitled, no one of such persons has an absolute legal right as against the others to receive such letters. Quintard v. Mor- gan, 4 Dem. 168. In such a case the Surrogate has a discre- tion in making his selection. Matter of BeaTces, 5 Dem. 128 ; Quintard v. Morgan, supra ; Matter of Powell, 5 Dem. 281 ; Matter of Treadwell, 87 Misc. 584, 586. Nor need those hav- ing only equal claims be cited. Ihid., citing Code, § 2644; Matter of Wood, 17 N. Y. Supp. 354 ; Matter of Richa/rdson, 8 Misc. 140 ; Matter of Lasak, 8 N. Y. Supp. 740, aff'd 121 N. Y. 706. So under subdivision 2, of section 2643, which provides, that "if there is no residuary legatee qualified to act or none who will accept, letters must be issued to one or more of the principal or specific legatees," it has been held that the words are not intended to indicate a preference of principal over specific legatees, nor is the word principal used as a syno- nym for chief or most important, but that it has the force and effect of the word '•'• generaV and is meant to be descriptive of all legatees who are neither specific nor residuary. Quintard V. Morgan, supra, KoUins, Surr. So that any person belong- ing to the second class may be selected by the Surrogate, who will usually prefer that claimant who has the greater interest under the will. Ibid., citing Schouler on Exrs. and Adms. sec. 128. So Surrogate Coleman held, similarly {Matter of Beakes, supra) in a case where there were six persons, belong- ing to what may be called, under section 2643, the second class. One lived in a remote State; another was a minor; three of the others had contingent legacies dependent upon the death of two of the other legatees without issue ; the sixth had a vested life interest in one half of the funds, and was accord- ingly selected ; the Surrogate held that the interest of the minor did not pass to his guardian as against adult legatees, citing Cottle v. Vanderheyden, 11 Abb. 2f. S. 17, and Quin- LETTERS OF ADMINISTRATION WITH WILL ANNEXED. 637 tard V. Morgan, supra. In another case Surrogate Rollins held, that the selection of an administrator c. t. a., from among several persons having equal rights under the statute was not necessarily to be made to depend upon the declared preference of the testator such as, for example, the amount of the legacy indicated in the will, but that, other things being equal, such preference might properly be allowed to have some weight. Matter of Powell, 5 Dem. 281. And the Surrogate in that case selected of two legatees a resident of the State related to the testator as against a non-resident of the State not of dece- * dent's blood. So in another case the same Surrogate held, that where a testator's residuary estate is held in trust and occasion arises for the appointment of an administrator c. t. a., the ben- eficiary of the trust is entitled to letters in preference to his trustee. Matter of Roux, 6 Dem. 523, citing Matter of Thomp- son, 33 Barb. 334, affirmed 28 How. Pr. 581. It has been held, moreover, as between parties having a similar interest, indebted- ness to the estate, or personal interest in its administration, is not of itself ground for rejecting the applicant {Ghurcldll v. Prescott, 2 Bradf. 304 ; Quintard v. Morgan, supra) ; nor that the applicant was engaged in a proceeding involving the con- struction or validity of the will. Ibid. What has been al- ready intimated in regard to the guardian of an infant applies only to cases where there are others equally entitled with the infant. Where the infant is absolutely entitled as against all other parties but for his infancy, it is held that letters must issue to the guardian of such person ; the provision was for- merly incorporated in the Eevised Statutes (2 R. S. chap. 6, title 2, sec. 33, vol. 4, Banks's 8th ed. p. 2553), and reads as follows : " If any person who would otherwise be entitled to letters of administration as next of kin or to letters of administration with the will annexed as residuary or specific legatee, shall be a minor, such letters shall be granted to his guardian, being in all respects competent, in preference to creditors or other per- sons." This statute is now superseded by the provision of section 2660, which provides briefly that if a person entitled is a minoi', administration must be granted to his guardian if competent, in preference to creditors or other persons. Blanch V. Morrison, 4 Dem. 297, Rollins, Surr. ; so also Matter of ■Lasah, 8 N. Y. Supp. 740, affirmed 121 N. Y. 706; so also Matter of Tyler, 6 Dem. 48, 51, Coffin, Surr. ., : . SUKROGATES COURTS. § 12. Miscellaneous cases. — It is of course true in this case, as in all others where a person claims as belonging to a class specified in the statute, that the Surrogate has power to inquire into and determine whether the claimant does or does not be- long to such class; as for example in Matter of House, 2 Connoly, 52i, where the decedent had been twice married, and his first wife Mary was a resident of the State of New York, but her husband, having left her, proceeded to Ohio where he commenced an action for divorce and obtained a judgment of the Ohio court, no process in said action having been person- ally served upon his said wife nor did she appear or authorize any one to appear for her in said action ; he subsequently re- married in the State of Michigan after which he returned with his second wife to the State of New York where he lived until his death. The decedent left certain household effects and a chose in action, a supposedly valid claim against a railroad com- pany by reason of his having been accidentally killed upon its tracks. Both women forthwith applied to be appointed ad- ministratrix. The Surrogate asserted his power to inquire into the facts, declared the Ohio divorce illegal and void in the State of New York against the first wife, declared her to be the law- ful widow of the decedent, and issued letters to her. So again where a party claimed to be a creditor, the Surrogate upon inquiry into the facts found him to be merely a claimant under a contract made with the executor and not with the decedent, and declared him consequently not to be a creditor of the de- cedent as required by the terms of section 2643. Fowler v. Walter, 1 Dem. 240, Eollins, Surr. So, also, where the facts are uncontroverted at the time, but subsequently application is made to have the letters revoked on the ground that the person did not sustain the relation alleged upon the application for letters, the Surrogate must examine the facts. Thus, where letters of administration had been granted to a petitioner as sur- viving husband of the decedent and proceedings went so far as that he administered the estate and rendered his account there- for, and payment was decreed of the whole surplus to him as such husband by the Surrogate, after which the next of kin appeared and filed a petition alleging that he had never been the husband of the decedent, and asked to have the decree on the accounting and for distribution vacated and set aside, and the assets paid over to the next of kin, the Surrogate inquired LETTERS OF ADMINISTRATION WITH WILL ANNEXED. 639 into the facts and determined that the administrator was not and never had been the husband of the intestate, but had lived, with her only in a meretricious relation, and accordingly re- voked the letters and vacated the decree on the ground of their having been obtained by fraud and falsehood. The General Term and Court of Appeals affirmed his determination. Mat- ter of Patterson, 29 N. Y. Supp. 451; 79 Hun, 371, affirmed 146 N. Y. 327. In this particular case the petition asked for a vacating of the decree of distribution and the Surrogate not only vacated the decree but revoked the letters. The General Term denied the Surrogate's right to revoke the letters for the reason that the proceeding was not framed for such relief, but affirmed the vacating of the decree for distribution. On the appeal to the Court of Appeals, it was claimed that as long as the letters stood unrevoked there remained conclusive proof of the administrator's title as husband until they were vacated in a proper and direct proceeding ; the Court of Appeals held, however, that it could have no such effect, but that ooaceding that the letters should stand as of full force and effect, the vacating of a decree of distribution and the making of a new decree of distribution to the next of kin was perfectly proper, itbeing immaterial by whom distribution should be made. See opinion of Finch, J., at pages 330 and 331. § 13. Joining third party in administration. — In a recent case {Estate of Sophie Moehring, New York Law Journal, Au- gust 3, 1898), the petitioner, who was entitled to letters of administration, with the will annexed of the decedent, in mak- ing her application therefor asked and consented to have the letters issued jointly to her and to another person who, in his own right, would not be entitled to the same. Granting this application, Fitzgerald, Surr., observed : " Section 2643 of the Code of Civil Procedure which designates the persons to whom letters of administration c. t. a. may be issued and the order in which they are entitled to the same, makes no provision for issuing the letters to a person not otherwise entitled to them, in conjunction with one who is. Authority, however, for the granting of such letters was found in section 34, part 2, chap- ter 6, title 2, article 2, of the Revised Statutes (vol. 4, 8th ed. p. 2553 ; Matter of Morgan, 4 Dem. 168). Section 34 declared that ' administration may be granted to one or more competent persons although not entitled to the same, with the consent of 640 surrogates' courts. the person entitled to be joined with such person ; which con- sent shall be in writing, and be filed in the office of the Surro- gate.' This section continued in force until it was repealed by the abrogation by chapter 686 of the Laws of 1893 of the arti- cle of which it was a part. This act incorporated section 34 almost Uterally and nearly all the other provisions of article 2 substantially under sections 2660 and 2661 of the Code. These sections are part of article 4, title 3, chapter 18, of the Code of Civil Procedure. This article previously to such incorporation related wholly and exclusively to the procedure in applications for letters of administration in oases of intestacy, and the inser- tion among its provisions of the sections of the Revised Stat- utes has created grave doubt as to whether the legislature intended that such of these sections as were applicable to ad- ministration in cases of testacy should continue so applicable after their inclusion in the Code. While the change thus effected coupled with the confusing manner in which the provisions of the Revised Statutes have been collated and consolidated in sections 2660 and 2661 has involved the question in consider- able obscurity and perplexity, still I think that upon a careful scrutiny of these sections, it will be discovered that they sup- ply strong internal evidence that the provision in question was not intended to be limited in its application to administration in cases of intestacy. Section 2661 prescribes that ' letters of administration shall not be granted to a person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to a person not a citizen of the United States, unless he is a resident of the State, nor to a person under twenty-one years of age, or who is adjudged incompetent by the Surrogate to execute the duties of such trust by reason of drunkenness, improvidence or want of understanding.' This section is a substantial re-enactment of section 32 of the article of the Revised Statutes above mentioned, and it was the only provision of law prior to the enactment of section 2661 of the Code that prescribed the grounds of disqualification of a person to receive letters of administration, as section 2661 has since its adoption been the only existing provision of law on the same subject. ]S"either of these sections afford in themselves any indication that they relate to one sort of letters rather than another. The unrestricted nature of the language of the sec- tions would seem to imply that they relate to both. The sec- LETTERS OF ADMINISTRATION WITH WILL ANNEXED. 641 tion of the Revised Statutes undoubtedly so applied {Matter of Morgan, 4 Dam. 168), and the section of the Code has been held to have a like application (Estate of Nathcmiel Manley, 12 Misc. p. 472). The fact that the latter section, which is an embodiment of section 32 of the Revised Statutes, is applicable to letters of administration in cases of testacy is a strong rea- son for concluding that the provision in question which was transferred from the Revised Statutes at the same time and in the same manner was intended to be similarly applicable. This view appears to be countenanced by the notes of the commis- sioners of statutory revision and their remarks in reporting to the legislature for adoption the amendments to the Code effected by the act of 1893. They seem to indicate that the amendments were intended to re-enact, and so continue in operation the pro- visions which they had superseded (Report of Statutory Revi- sion, 1891, pp. 1115, 1167)." § 14. Removal of administrator with the will annexed. — The rules in regard to the removal of an administrator with the will annexed are discussed below in the chapter on the revoca- tion of letters. § 15. Powers and duties of administrators f. t. a. — We have already noted that an administrator with the will annexed may execute a power under a will which is imperative and not discretionary. Carpenter v. Bonner, 26 App. Div. 462 ; Mott V. Acherman, 92 E". Y. 539 ; Bennett v. Oarlock, 79 N". Y. 316 ; Bain v. Matteson, 54 N. Y. 663 ; Simmons v. Taylor, 19 App. Div. 499 ; Clifford v. Morrell, 22 App. Div. 470 ; Fish v. Coster 28 Hun, 64. More generally speaking, however, section 2613 defines the powers granted to such administrators ; it provides that where letters of administration with the will annexed are granted, the will of the deceased shall be observed and per- formed and the administrator with such will shall have the rights and be subject to the same duties as if he had been named executor in the will. It is therefore unnecessary to discuss these duties and powers at length here separately, save perhaps to observe that the conduct of an administrator with the will an- nexed is regulated as is that of executor by the terms of the will not as that of the administrator by the terras of the statute. Matter of Allen, 7 Civ. Proc. Rep. 159. It will be material, of course, where an administrator with the will annexed asserts his right to do a particular act, to inquire, if such right is con- 41 642 surrogates' courts. troverted, whether the executor whom he succeeds had this right. So, for example, where an administrator with the will annexed had been appointed and had collected certain rents of real estate, which under the will should properly have been col- lected by the guardian of testator's minor children, Surrogate Lansing held {Matter of Blow, 2 Connoly, 360, 365), that the executor not having such authority the administratrix could not acquire it. The General Term in the First Department, in another case. Judge Daniels writing the opinion, intimated a doubt as to whether an administrator with the will annexed had power to renew a lease, the estate of which he was administrator including a leasehold interest, or whether such renewal should be made by the tenants in common. Walther v. Begnault, 56 Hun, 560. But of course administrators with the will an- nexed must perform all the duties of the executor in regard to paying debts or legacies. Bowers v. Emerson, 14 Barb. 652. They will be held to strict accountability. Thus, where an administrator, who was appointed with the will annexed of a testator whose wife was declared insane on lunacy proceedings subsequent to his death, undertook to pay the expenses of such proceedings, Surrogate Calvin refused to approve the disburse- ments on the ground that the wife's interest in her husband's estate becomes hers at his death, that that interest was the measure of his obligation to support her and that such expenses were chargeable not to his estate but to hers, and that accord- ingly the administrator with the will of the husband annexed had no more right to charge these expenses to his estate than he would for a disbursement for the support of an entire stranger. Underhill v. Newhurger, 4 Eedf. 499. The general rule, then, may be said to be whatever the executor must do under the will, the administrator with the will annexed may do. What- ever the executor may or may not do under the will according to his discretion, or as his personal interest may be affected, the administrator cannot do. Simmons v. Taylor, 19 App. Div. 499, Landon, J., at page 503, citing Mott v. AcJcerman, 93 N. Y. 539, 552 ; Cooke v. Piatt, 98 K Y. 35. So &\soFish v. Coster, 92 N. Y. 627. An administrator of an intestate who was the executor of a will does not succeed by virtue of the administra- tion to the duties of an administrator with the will annexed un- der the will of his intestate's testator. The mere fact that the assets of such testator properly pass into the administrator's LETTERS OF ADMINISTKATION WITH WILL ANNEXED. 643 hands is immaterial ; he is merely the custodian of such assets until the appointment of an administrator with the will annexed. Kilburn v. See, 1 Dem. 353, Coffin, Surr. It is important to reiterate in distinguishing between the powers of an executor and of an administrator with the will annexed that if such powers in regard to real estate which an executor is given by the will are in the nature of trust duties given to him not as executor but as an individual, they will not pass to an admin- istrator with the will annexed. Such an administrator has no power to sell and dispose of real property under a will, nor to execute trusts relative to such real estate, but can only act un- der a naked power imperative in its terms to sell and convert into cash. Mott v. Acherman, 92 IT. Y. 539 ; Dunning v. Ocean National Bank, 61 N. Y. 497, 502 ; 6 Lansing, 296. So also opinion of Cowen in Conklin v. Egerton's Administrator, 21 Wend. 429, at pages 432, 439, 470, and cases examined. Where an administrator with the will annexed is appointed upon the removal of the executors to whom he succeeds, he has full power to compel them to account for the assets of the estate and may enforce all the necessary proceedings to that end. Clapp V. Meserole, 1 Abb. Ct. App. Dec. 362. So if the repre- sentative to whom he succeeds died, thus necessitating his ap- pointment, it is his duty to require the personal representative of his predecessor to render an account of the latter's proceed- ings. Section 2606 is his authority for so doing. Matter of Richmond, 63 App. Div. 488, 492, citing. Matter of Clark, 119 N. Y. 427; Matter of Wiley, 119 IST. Y. 642. See opinion as to what questions the Surrogate may determine upon such ac- counting. CHAPTEE III. TEMPORARY ADMINISTRATION. § 1. Beflnition. — A temporary administrator is an officer appointed by the Surrogate (where the appointment of an ex- ecutor, administrator with the will annexed or permanent ad- ministrator is for any reason delayed, or where the owner of property has disappeared), to take charge of a decedent's or absentee's estate until a final appointment can be made or until the owner return. Prior to the Code such officers were called, special administrators or collectors {Berdell v. 8chneU, 2 Dem. 292. See § 2683, 0. C. P.) and held " letters ad colligendum:' Lawrence v. Parsons, 27 How. Pr. 26. The collector derived his authority from the Revised Statutes (2 R. S. 76, § 2), which defined his authority to be, " To collect the goods, chat- tels, personal estate and debts of the deceased and secure the same and under the direction of the Surrogate to sell such goods as may be deemed necessary for the preservation and benefit of the estate after their appraisal," and by subsequent enactment (Laws of 1870, chapter 359, section 10), the Surro- gate in New Tork County was given power to authorize such a collector to publish notice for claims and to direct the payment of debts in certain instances. Since the adoption of the Code the cases in which such an administrator will be appointed and the powers and duties of such an administrator are very clearly defined. It provides the cases when and the manner in which a temporary administrator may be appointed, as follows : On the application of a creditor, or a person interested in the estate, the surrogate may, in his discretion, issue to one or more persons competent and qualified to seiwe as executors, letters of temporary administration, in either of the follow- ing cases : 1. When, for any cause, delay necessarily occurs in the granting of letters testamentary or letters of administration, or in probating a will. 2. Where a person, of whose estate the surrogate would (644) TEMPORARY ADMINISTRATION. 645 have jurisdiction, if he was shown to be dead, disappears or is missing, so that after diligent search, his abode cannot be ascertained, and under circumstances which afford reasonable ground to believe either that he is dead, or that he has be- come a lunatic or that he has been secreted, confined, or other- wise unlawfully made away with ; and the appointment of a temporary administrator is necessary for the protection of his property and the rights of creditors, or of those who will be interested in the estate if it is found that he is dead. § 3670, Code Civil Proc, first part. § 2. Power to appoint, discretionary — It must be made to appear to the satisfaction of the Surrogate that the appointment of a temporary administrator is necessary for the protection of the property and the rights of creditors. The statute in terms makes the granting of such letters discretionary. The propri- ety of issuing or withholding them is plainly dependent upon the exigencies of the estate, the amount and situation thereof and other circumstances which require to be judged of summa- rily, and the determination of the Surrogate in such regard ought not to be reviewed upon appeal. McGregor v. Buel, 24 N. T. 166, 169 ; Matter of Chase, 32 Hun, 318, 320. This dis- cretion of the Surrogate extends by the terms of this section to the person whom he may appoint. He may appoint " one or more persons competent and qualified to serve as executors." Nothing is said as to any priority of right among such persons, and while th^ Surrogate must chose from those who possess ca- pacity and qualifications to act as executor, on the other hand any one thus qualified may be appointed in the exercise of a ju- dicial discretion, and he is not limited in making his selection to persons entitled to ordinary administration under the statute. Matter of Plath, 56 Hun, 223, 225. In this case Judge Bart- lett observed : "It is important that the person entrusted with temporary administration should be not only competent and honest, but disinterested ; and if he had to be either a relative or a creditor of the deceased it might often be very difficult to select a temporary administrator who should be indifferent as be- tween the parties to a contest among applicants for permanent administration or a contest over the probate of a will." But the limitations provided by the Code are explicit and must be observed. It is customary to refuse to appoint a person who is interested in the litigation which is causing the delay in the 646 StJEROGATEs' COtTKTS. administration in chief. In the case of Grandell v. Shaw, 2 Redf. 100, Surrogate Smith declined to appoint a party to the htigation as the collector, ciimg Mootrie v. Hunt, 4 Bradf. 173. So where the person named as executor in the will was the chief beneficiary thereunder or where he has any hostile interest to the heirs or next of kin he should not be appointed. Hoio- ardv. Doughty, 3 Redf. 535 ; Matter of Eddy, 10 Misc. 211, 214, Lansing, Surr., citing Matter of Sterns, 2 Connoly, 272 ; West v. Mapes, 14 Week. Dig. 92 ; Matter of Plath, 56 Hun, 223, 225. So where the person named as executor in the will is charged by the contestants with having exercised undue influence upon the testator he will be rejected as temporary administrator. Gornwcll v. Gornwell, 1 Dem. 1 ; Matter of Sterns, 2 Connoly, 272 ; In re Wanninger's Estate, 3 N". Y. Supp. 137, Ransom, Surr. The mere fact however that a person is named as executor is no ground for refusing temporary letters to him. See Jones v. Hamersley, 2 Dem. 286, 287, where Surrogate Rollins held that while the statute gave to one named as executor in the dis- puted will no priority of claim to the appointment, neither did it on the other hand subordinate his claim to that of any other person, and whether the Surrogate should appoint as the tem- porary administrator of a decedent's estate one who is named as executor in a disputed will or some other person, must be decided in each case that presents itself upon its own partic- ular facts and circumstances. " "Where an application for the appointment of one named as an executor has been opposed on the ground of his unfriendly relations with contestants, or of his alleged undue influence in shaping the testamentary dispositions of the decedent, or for some like cause, such application has often been denied. . . . The bare fact that Mr. Williams will be entitled to testamen- tary letters if the paper in dispute shall be upheld as a will .... tends rather to support than to defeat the petitioner's conten- tions." lUd., at page 288. So in cases of small estates the court may be influenced by consideration of economy and appoint the person named as the executor particularlv if the charges of undue influence are vague and uncertain. Haas v. Childs, 4 Dem. 137. See Matter of Banhard, 19 Week. Dig. 452. In Matter of Hilton, 29 Misc. 532, where the Surrogate ap- pointed the executors named in the will temporary adminis- trators, although they were charged with unduly influencing TEMPOBABY AUMINISTKATION. 647 the testator in the execution of his will, because of economy, and because the allegations were " general, remotely inferential or conjectural " in cbaracter. He observes that the rule which would ordinarily require the court to refuse to appoint an executor the temporary administrator because charged with undue influence is not absolute and without proper exception. Hid., citing the cases just discussed. § 3. Cases where appoiutment is proper. — The language of section 2670 is so explicit as to need little comment in fixing the cases in which the Surrogate has power to appoint a tem- porary administrator. It is necessary, however, to note that, pending an application for limited letters under section 2664, w^here the fixing the amount of an administrator's bond is com- plicated by the existence of some right of action granted to the executor or administrator by special provision of law as covered by section 2664, q. v., no temporary administrator shall be ap- pointed except on petition of the next of kin as prescribed in that section. In re Le Roy^s Estate, 5 N. Y. Supp. 555. The jurisdiction of the Surrogate to appoint a temporary adminis- trator is not divested by his having transferred the proceedings for probate of a will to another court for a jury trial. Matter of Blair, 60 Hun, 523, where Judge Barrett points out that by such a transfer the Surrogate was divested of no powers except such powers as by force of the transfer were expressly conferred upon the court to which the proceedings had been transferred. § 4. Not every delay a warrant for appointment of tempo- rary administrator.— The language of section 2670, "Where delay necessarily occurs in the granting of letters testamentary or letters of administration," is not to be taken as warranting the exercise of the power to appoint in every case of delay, or in every case of contest. For the condition of an estate may be such that no possible harm or inconvenience could result from the delay to the parties interested. Or the condition of the estate may be such as that the Surrogate would have no power to appoint such an administrator. For example, a dece- dent died intestate as to all her estate except the real property devised by her will which named no executor. It was manifest that no letters testamentary could issue, and that, as the will contained a simple and absolute devise of real estate, there would never be any occasion for an administrator. Surrogate Kollins accordingly vacated an order made by his predecessor 648 STJEROGATES' COUBTS. which empowered a trust company to collect and receive the rents oJ: the premises devised by the will pending a controversy over its probate, on the ground that such an order was unau- thorized and void, and he accordingly refused to make an order directing the trust company to pay over the rents already col- lected under said unauthorized order. Tooker v. Bell, 1 Dem. 52. But where there are such conditions, or the estate is of such a character, that necessary delay in having some person authorized to take charge of the estate will necessarily or prob- ably cause loss to the estate or be likely to impair rights or reme- dies of persons interested therein, a case is made out for the appointment of a temporary administrator. Matter of Eddy, 10 Misc. 211, Lansing, Surr. Customarily, where a contest occasions a delay in the issuance of letters a temporary admin- istrator will be appointed for the purpose of getting in the assets and conserving the estate. Matter of McOowen, 36 N. Y. St. Eep. 689. It was held to be a clear case for the granting of such letters when there were outstanding numerous promis- sory notes, unsecured, to realize on which diligence in prose- cuting the same would be required. Matter of Eddy, 10 Misc. 211. See also Matthews v. Am. Cent. Ins. Co., 154 K Y. 449, 461. The application cannot be made as an original applica- tion except under subdivision 2, for, where the fact of death is un controverted, section 2670 assumes that an application is pending for letters testamentary or of administration in chief. And so, where petitioner alleged that the decedent was a resi- dent of the city of Philadelphia leaving assets in this State unadministered upon, and that petitioner was a creditor of the estate, and letters of temporary administration were asked for to enable petitioner to collect its claim. Surrogate Bergen de- nied the application on the ground of total lack of power to grant it. Sato Mill Co. v. Dock, 3 Dem. 55. § 5. Appointment in case of supposed death. — What will authorize a Surrogate to appoint a temporary administrator under subdivision 2 of section 2670 depends entirely upon the circumstances of the particular case. But, as a temporary ad- ministrator's function is merely to collect and preserve the estate, he may be appointed upon much weaker proof, raising a presumption of intestate's death, than could a permanent administrator. Czech v. Bean, 35 Misc. 729. Where letters of administration in chief are issued upon the estate of one TEMPOKAEY ADMINISTfiATION. 649 supposed to be dead and it subsequently appears that he was not dead at the time, this fact will in most jurisdictions avoid the grant of letters. 19 Am. & English Encyclopedia of Law, page 184 and cases cited. But the Court of Appeals in this State {Roderigas v. East Eiv. Sav. Bank, 63 N. Y. 460) laid down a rule (which, though largely criticised, is the law in this State) to the effect that the letters so issued were not for that reason absolutely void, and that a person acting in good faith with the administrator so appointed would be protected. The subsequent decision in the same case (76 N. Y. 316) as has been elsewhere indicated held merely that the letters were void ab initio because not issued by the Surrogate nor with his knowledge but only by the clerk. If there was slight proof of death before the Surrogate when he made the appointment it cannot be questioned collaterally. Csech v. Bean, supra. These rules however are not controlling upon an application for temporary administration. The Surrogate is not required to find the fact of death, but is merely required to be satis- fied that there are circumstances which afford reasonable ground to believe either that the absentee has become a luna- tic, or that he has been secreted, confined or otherwise un- lawfully made away with. So, where a young girl disap- peared from home and her parents could fiud no trace of her, although they resorted to correspondence with all her known friends, as well as to advertising and to the employment of detectives, and there was no known reason why she should have been dissatisfied in her home, and no known attachment which could have lured her away from it, the Surrogate of New York County held that such a disappearance for a period of eight years presented a proper case for appointing a temporary administrator. Matter of Cohen, Law Bulletin, March 26, 1891. See section 841 of the Code, as to presumption of death in certain cases. §6. Effect of "for any cause."— Section 2670, subdivi- sion 1 was amended, L. 1901, chap. 20. Prior to September 1, 1901, the subdivision read : " Where delay necessarily occurs in the granting of letters testamentary or letters of administra- tion, in consequence of a contest arising on an application therefor, or for probate of a will ; or in consequence of the absence from the State of an executor named in the will ; or for any other cause." The words " for any other cause " orig- 650 surrogates' courts. iaally coming at the end of the subdivision, had been held to qualify the first sentence " where delay necessarily occurs," and were held not to enlarge the field of the Surrogate's dis- cretion. As amended, however, the subdivision is more ex- plicit and may be held to give the Surrogate power to issue letters of temporary administration when for any cause delay necessarily occurs either in the granting of permanent letters or of probating a will, subject, however, to the limitations already pointed out. Where delay in the issuing of letters was caused by the necessity of serving the citation by publication and the estate was in such condition as to require the protec- tion of temporary administration an application for such ad- ministration was granted. Estate of Moesvyll, 3 Law Bulletin, 80. A temporary administrator may be appointed in cases of appeal from the probate decree ; such appointments were made before the Code where the appeal was from a decree admitting to probate, Mootrie v. Hunt, 4 Bradf. 173, as well as from a decree refusing probate. NewKouse v. Oale, 1 Redf. 217. In this case where the Surrogate had refused to admit a will to probate and issued letters of administration, and an appeal was taken from the decree refusing probate, Surrogate Smith held, that as the appeal stayed all proceedings in the administration, and as no letters of collection could issue while the letters of administration continued in force, it was proper for him to re- voke the letters of administration and to issue letters of collec- tion to protect the personal property' pending the appeal. See, as to when appeal does stay proceedings, Matter of Glhon, 29 Misc. 273. So where letters testamentary have issued to an executor and he has removed from the State, it seems that a temporary administration cannot be had whilst the original letters testamentary stand unrevoked. Matter of Sohn, 1 Civ. Pro. Eep. 373. § 7. Practice on appointment. —The practice upon an appli- cation for the appointment of a temporary administrator is in- dicated by the second part of section 2670, which is as fol- lows: An appointment of a temporary administrator in a case specifled in subdivision first must be made by an order. At least ten days' notice of the application for such an order must be given to each party to the proceeding, who has appeared, TEMPORARY AD2tfINISTRATI0N. 651 unless the surrogate is satisfied by proof that the safety of the estate requires the notice to be shortened, in which case he may shorten the time of service to not less than two days. Application for such an appointment, in a case specified in subdivision second must be made by petition, in like manner as where an ap|)lication is made for administration, in case of intestacy ; and the proceedings are the same as prescribed in article fourth of this title, relating to such last-mentioned application. Such an application for the appointment of a temporary administrator may also be made, with like effect, and in like manner, as if made by a creditor, by the county treasurer of the county where the person whose estate is in question, last resided ; or if he is not a resident of the state, of ttie county where any of his property, real or personal, is situated. A temporary administrator must qualify as prescribed in article fourth of this title, with respect to an administrator- in-chief. § 3670, Code Civil Proc, second part. These provisions distinguish between applications under sub- division 1 and under subdivision 2 of that section. Where the reason for the appointment is delay necessarily or probably occurring or to occur in the granting of letters the application for temporary administration should properly be made in the pending proceeding for probate of the will or for the granting of letters of administration. This is manifest from the word- ing of the statute which provides that the appointment must be by an order, ten days' notice of the application for which must be given " to each party to the proceeding who has ap- peared ; " this notice may be shortened in urgent oases to not less than two days. Where the application is made in the case of disappearance or supposed abduction or death, section 2670 contemplates a separate proceeding similar to an ordinary proceeding for ad- ministration to be begun by petition, which special proceeding is the same as that prescribed in art. 4, of title 3, of chap. 18, to Avit: the article entitled "The grant of letters of administra- tion," including sections 2660 to 2669. Application under the first subdivision must be made by a creditor or a person inter- ested in the estate but application under subdivision 2 may be made not only by a creditor or a person interested but also by 652 SUREOGATES' COUBTS. the county treasurer of the county where the person, who has disappeared and whose estate is in question, last resided, or, if he was a non-resident, by the county treasurer of the county where any of his property real or personal was situated. It is not essential that the order should recite the facts upon which the Surrogate has acted other than the jurisdictional facts, but it is suggested that in case temporary administration is granted under subdivision 2 of section 2670, the order should recite the facts leading the Surrogate to exercise jurisdiction as nearly as possible in the language of the statute. Precedents in the pro- ceedings for letters of temporary administration are suggested in section 21, below. § 8. Bond of temporary administrator. — A temporary ad- ministrator must qualify as prescribed in the Code with respect to an administrator in chief, section 2670, last clause, formerly section 2671. These provisions are briefly that a person ap- pointed administrator, before letters are issued to him, must file his oflicial oath, execute to the people of the State, and file with the Surrogate, the joint and several bond of himself and two or more sureties, in a penalty fixed by the Surrogate, not less than twice the value of the personal property of which the decedent died possessed and of the probable amount to be recovered by reason of any right of action, granted to an exec- utor or administrator, by special provision of law. The sum to be fixed as the amount of the penalty must be ascertained by the Surrogate, by the examination on oath of the applicant or any other person, or otherwise, as the Surrogate thinks proper. The bond must be conditioned that the administrator will faith- fully discharge the trust reposed in him as such, and obey all lawful decrees and orders of the Surrogate's Court touching the administration of the estate committed to him. Under chapter 720 of the Laws of 1893 all officers of the Surrogate's Court such as executors, administrators, guardians or trustees may use Surety Companies upon their official bonds. At first the various Surrogates disallowed disbursements made by an executor for premiums in securing the execution of such official bonds. Thus Surrogate Coffin {Jenkins v. Shaffer, 6 Dem. 59) held that a temporary administrator who had given a bond of the Few York Bond and Indemnity Co., as his surety, to whom he had paid $45.00 as premium, was not entitled to be allowed this expenditure upon his accounting, it being neither in the TEMPORARY ADMINISTRATION. 653 line of his duty nor being necessary or reasonable under sec- tion 2652, Code Civ. Proc. The Surrogate remarked " if he cannot furnish the necessary bond he cannot receive the ap- pointment. The estate or persons in interest are under no ob- ligation to refund to him the money he may have expended in procuring his sureties." The same Surrogate made a similar ruling in Matter of Patterson, 15 N. Y. Supp. 963, where a general guardian had given the bond of the Fidelity and Cas- ualty Co., for which he had to pay a premium. But in 1892 an amendment was enacted to section 3320, Code Civ. Proc, relat- ing in chief to receiver's commissions, but in which amend- ment the following provision was made relative to what is described in the title of the act, chapter 465, Laws of 1892, as the lawful expenses of persons required by law to give bonds. This amendment reads as follows : " Any receiver, assignee, guardian, trustee, committee, executor, or administrator, re- quired by law to give a bond as such, may include as a part of his lawful expenses such reasonable sum not exceeding one per cent per annum upon the amount of such hand paid his sureties thereon as such court or judge allows." § 9. Powers and dnties of a temporary administrator. —A temporary administrator being a special officer appointed for a special and temporary purpose, his rights in regard to the estate which he is to conserve are expressly defined by the Code as follows : A temporary administrator, appointed as prescribed in this article, has authority to take into his possession personal property ; to secure and preserve it ; and to coUect choses in action ; and, for either of those purposes, he may maintain any action or special proceeding. An action may be main- tained against him, by leave of the sm-rogate, upon a debt of the decedent, or of the absentee whom he represents, in like manner, and with Kke effect, as if he was an administrator in chief. The surrogate may, by an order, made upon at least ten days' notice to all the parties who have appeared in the special proceeding, authorize the temporary administrator to sell, after appraisal, such personal property, specifying it, of the decedent, or of the absentee whom he represents, as it appears to be necessary to sell, for the benefit of the estate, or, if it appears that the safety of the estate requires the no- tice to be shortened, the surrogate may shorten the notice to 654 surrogates' courts. not less than two days. The surrogate may, also, by order, authorize him to pay funeral expenses, or any expenses of the administration of his trust, or stenographer's or referee's fee on contest of a will or administration ; and he may also direct the payment of a legacy or other pecuniary provision under a will, or a distributive share or just proportionate part thereof, according to section two thousand seven hun- dred and nineteen of this act, as though he were an executor or administrator. § 3673, Code Civil Proc. The Surrogate cannot enlarge the powers given by the stat- ute. The purpose of section 2672 is the preservation and not the administration of the estate. See RiegeVman v. Riegelman, 4: Eedf. 492, construing the prior statute. The duties and lia- bilities of temporary administrators appointed prior to the adoption of the Code and still acting thereafter are regulated as follows : Each provision of this chapter, imposing a duty or liability upon a temporary administrator, appointed upon the estate of a decedent, or his sureties ; or conferring upon the surro- gate power or authority with respect to su6h a temporary administrator, or his sureties ; applies to a collector or spe- cial administrator, appointed before this chapter takes effect, and his sureties ; except so far as it is repugnant to the pro- visions of law in force, when the collector or special admin- istrator was appointed, or to the letters issued to him. § 3683, Code Civil Proc. § 10. Same subject. — Section 2672 was evidently intended to enlarge rather than restrict the powers of temporary admin- istrators {Berdell v. Schell, 2 Dem. 292, 295), and in fact em- bodies most of the permissive enactments prior to the Code. Collectors or special administrators were much restricted in respect to the disbursements they could be allowed, or the dis- position they could make of the moneys in their hands. Thus a collector was held to have no power to pay funeral expenses. CogswelVs Estate, 4 Redf. 241. Section 2672 now permits such a disbursement. A special collector had not power to pay out any moneys of the estate except for his own necessary expenses. ParisKs Estate, 29 Barb. 627. He may now pay legacies, expenses of administration, stenographer's and referee's fees. TEMPORAKY ADMINISTKATION. 655 § 2672, Code Civ. Proc. A collector could not be directed to pay debts of the estate up to 1870, when by chapter 359, section 10, provision was raadefor the payment of debts in cer- tain cases. Ex parte Hashett, 3 Redf. 165. Under the Code by sections 2673 and 2674 {%q% post, p. 661), full power is given to the Surrogate in this regard. Prior to the Code no Surro- gate could direct hira to make payment of a legacy or a dis- tributive share of the estate. Riegelman v. Biegelman, 4 Redf. 492 ; Riegelman v. McCoy, 1 Dem. 86, 88. The power to sell personal property and convert into money has fre- quently been exercised. Thus a temporary administrator will be authorized to sell the horses and carriages of an estate in order to reduce expense {Matter of Cogsioell, 4 Eedf. 241), provided they shall first have been appraised. With regard to the use of the funds in his hands, the rule as to the deposit of such funds by such an administrator are covered by special provision of the Code. These provisions are as follows : Deposit of money hy temporary administrator. A temporary administrator, appointed as prescribed in this article, must, within ten days after any money belonging to the estate comes into his hands, deposit it as prescribed in this section. Where he was appointed by the surrogate's court of any county except New York, it must be deposited with a person, or with a bank, or in a domestic incorporated trust company, designated by the surrogate ; but a natural person, so designated as depositary, must first file in the sur- rogate's office a bond to the surrogate, in a penalty, fixed by him, executed by the depositary and two sureties, and con- ditioned to render a faithful account, and pay over aU money received by him, upon the direction of any court of competent jurisdiction. Where the temporary administrator was ap- pointed by the suiTogate of the county of New York, the money must be deposited in a domestic incorporated trust company, having its principal office or place of business in the city of New York, and either specially approved by the surrogate, or designated, in the general rules of practice, as a depositary of funds paid into court. § 2618, Code Civil Proc. Proceedings where he neglects to deposit. If a temporary administrator neglects to make a deposit. 656 StTRROGATBS' COURTS. as prescribed in the last section, within the time therein lim- ited, the surrogate must, upon the application of a creditor or person interested in the estate, accompanied with satisfac- tory proof of the neglect, make an order, directing him to do so forthwith, or to show cause why a warrant of attachment should not issue against him. In the county of New York, the order must be made returnable three days after issuing it ; and it must be served upon the temporary administrator, at least two days before the return day thereof, either per- sonally or by leaving a copy thereof within the state at his dwelling place, or his office for the regular ti'ansaction of busi- ness in person; or if it cannot be served in either of those methods, by serving it in such other manner, as the surrogate directs. In any other county, it must be made returnable within a reasonable time, not exceeding fifteen days after is- suing it; and it must be served, in like manner, at least ten days before the return day thereof. § 36 TO, Code Civil Proc. Money deposited ; how withdrawn. Money deposited by a temporary administrator, as pre- scribed in this article, cannot be withdrawn, except upon the order of the surrogate, a certified copy of which must be pre- sented to the depositary. Such an order may be made upon two days' notice of the application therefor, given to all the parties to the special proceeding, in which the temporary ad- ministrator was appointed, who appeared therein; but not otherwise. § 3680, Code Civil Proc. § 11. Same subject. — The temporary administrator must account not only for principal sums received by him, but for any money belonging to the estate coming into his hands ; this includes the interest or other income credited him by the trust company or received by him from any source. See Laws of 1864, chapter 71, section 12 ; Liverm,ore v. Wortman, 25 Hun, 341. The deposit in a trust company, required by section 26Y8, is required not only as a matter of safety, but also in contem- plation of the interest it will thereby earn. Hence, if the temporary administrator fail to so deposit it, he is charge- able "with the interest which the trust company would have paid {Matter of Fhilp, 29 Misc. 263) ; unless he be guilty of misconduct when a greater rate may be charged. Ibid., TEMPORARY ADMINISTRATION. 657 and Livermore v. Wortmcm, supra. (See below.) The tem- porary administrator has no power to invest the assets which come into his hands {Baskin v. Bashin, 4 Lansing, 90), but he ought if possible to obtain interest on the funds [Har- rington V. Libby, 6 Daly, 259), and will be required to deposit moneys with a trust company, or person or bank designated by the Surrogate. Livermore v. Wortman, supra. The court in its discretion may permit a temporary administrator to temporarily continue the business of the decedent. Matter of Moriarity, 27 Misc. 161. This was a case where the ne- cessity of the appointment was due to a will contest. Much greater might the propriety be where the appointment is made because of a presumption of death. Where a collector deposits moneys to the credit of a firm in which he was a partner, thereby subjecting it to the business risks of that firm, or when he deposits it to his individual account in a bank, thereby sub- jecting it to the risks of his personal business, he will be charge- able with interest upon the funds during the time they were so deposited. The rate of interest charged has been variously fixed. Thus, Surrogate Calvin {Matter of Mai/rs, 4 Redf. 160) held that such wrongful deposit amounted to a misappropria- tion of the funds and charged the collector 7 per cent interest, then the legal rate, during the time the trust moneys were thus endangered, citing King v. Talbot, 40 N". Y. 76 ; Hassler v. Hassler, 1 Bradf. 248. See cases cited in Hassler V. Hassler, at page 252. In the case of Livermore v. Wortinan, the General Term in the First Department on appeal from the decision of Surrogate Calvin {sub nom. Matter of Mairs, supra) modified his decree by reducing the interest to that interest or income which might have been derived from the deposit if it had been made with a trust company as directed by statute. Davis, P. J., dissented, on the ground that there was a pre- sumption in the absence of proof to the contrary that the collector had the benefit and use of the funds and was charge- able with the full rate of lawful interest. The theory of this decision was explained later in the case of Butler Y.Jarvis, 51 Hun, 248, at page 265, where Judge Daniels intimated that there had been no misappropriation of the funds but a mere neglect of duty on the part of the collector. In 1887 Surro- gate Rollins in the case of an administrator retaining moneys on deposit in bank charged him upon his accounting with in- 42 658 STJBROaATEs' COURTS. terest at ]| per cent per aanura, the interest which a trust company would have paid under the circumstances. Matter of Mapes, 5 Dem. 446. See also Matter of Scudder, 21 Misc. 179, citing Matter of Meyers, 131 K T. 409, 415, 417. Where a temporary administrator made a special deposit of funds in his hands on an agreement for their repayment to him in six months with interest, it was held that in the event of non-pay- ment he should be held personally liable for the money. BasM-n v. BasTcin, 4 Lansing, 90. § 12. Same subject. — A temporary administrator may retain in his hands a reasonable sum to defray current expenses. Harrington v. Lilly, 6 Daly, 259. But the Surrogate's author- ity to direct the application of such moneys is limited by the provisions of section 2672. Kruse v. Fricke, 2 Dem. 264. An application for an order directing a temporar^r administrator to pay such sums as might be deemed proper to enable proponents of the will to procure the attendance of expert witnesses was denied. The expense which the Surrogate is empowered to anthorize arising on a contest are limited to stenographer's or referee's fees. They do not extend to the payment of any costs. Matter of Aa/ron, 4 Dem. 362, Surrogate Rollins, citing Matter of Pa/riah, 29 Barb. 637 ; Matter of Badger, 3 Law Bulletin, 71. § 13. Same subject. — With regard to the instituting of suits, the prosecuting of claims and choses in action has always been recognized. In 1856 Surrogate Bradford declared that he had no hesitation in saying that permission should be granted to a collector to institute a suit to collect and obtain the securities and property belonging to the estate. Delafield v. Parish, 4 Bradf. 24. And the learned Surrogate says (at page 26) in respect to suits the special administrator stands on the same footing as other adrtiinistrators. And the present statute dis- tinctly provides that for either of the purposes of securing and preserving personal property or to collect choses in action, he may maintain any action or special proceeding. Matter of McOowan, 36 N. T. St. Rep. 689. A chose in action in this connection has as broad a meaning as in any other. Thus a fire insurance policy after a loss has occurred is a chose in action, and a temporary administrator may collect the same, and if necessary, commence an action for that purpose. It is quite immaterial in this connection whether the proceeds are to be TEMPOBABY ADMINI8TKATION. 659 treated as real or personal property or both. The power to collect is indisputable, that power necessarily implies the fur- ther power to do whatever is requisite in order to perfect the chose in action so that collection can be enforced. Matthews v. American Central Ins. Co., 154 IS.. Y. 449, 460. The power to do any act includes the power to do all that is reasonably neces- sary to do it effectively. Id.., by Vann, J., at page 460, citing Hall V. Lauderdale, 46 IST. Y. TO, 73 ; Parker v. Supervisors, 106 N. Y. 392. The Court of Appeals held in this case that it was the duty of the persons interested in the estate to apply for a temporary administrator and to endeavor through him to give the notice required by the policy, and essential to perfect the cause of action, and then to have suit brought within the period stipulated in the policy, and that a failure so to do and to comply with the terms of the policy was fatal to any recovery against the insurance company. As to maintaining or defending ac- tions or special proceedings in relation to decedent's real property, see the explicit provisions of section 2675, quoted at page 663, post. % 14. Same subject — Counsel fees. — As incidental to these powers to sue, the temporary administrator has of course power to employ counsel and to pay them a reasonable sum for neces- sary legal services. Surrogate Rollins {Stokes v. J)ale, 1 Dem. 260) held that he had power to authorize a temporary admin- istrator to withdraw from deposit a specific sum and to pay thereout a reasonable sum for the services and disbursements of his counsel under the clause in section 2672 authorizing the Surrogate to direct the payment of " any expenses of the ad- ministration of the trust." He stated that the situation of a temporary administrator does not essentially differ in this re- spect from that of any other administrator, or from that of an executor ; when either of those officers has expended sums of money as counsel fees, he may properly assert a claim to be credited therefor in his account with the estate, and upon the settlement of such accounts the Surrogate will allow such credit if it appear that the expenditures have been necessarily incurred and are reasonable in amount, citing Estate of St. John, Daily Eeg. May 21, 1883. See Pa/risKs Estate, 29 Barb. 627. But it has been held that the Surrogate could not order a tempo- rary administrator to pay costs awarded by the decree granting letters of administration. Estate of Badger, 3 Law Bulletin, 71. 660 surrogates' coubts. Nor it seems can the Surrogate allow the temporary adminis- trator for the expenses incurred in the application to have such temporary administrator appointed. Matter of Banlcard, 19 N. Y. Week. Dig. 452. It has been held that a Surrogate may authorize the administrator, while the will is being contested, to continue the business of the decedent. Estate of Dinsmore, 2 Law Bulletin, 28. §15. Actions against temporary administrators. — The power given by section 2672 to the Surrogate, to authorize the institution of an action against a temporary administrator upon a debt of the decedent or of the absentee whom he repre- sents in like manner and with like effect as if he were an ad- ministrator in chief, will be exercised only in cases of urgency or necessity. The discretionary authority given by the sec- tion should never be exercised where its exercise might result in inflicting upon the estate an injury far greater than could possibly be suffered by the one applying for leave to sue if his application were denied. Matter of Fleming, 5 Dera. 336. But in a necessary case and where the claimant's rights would suffer by reason of any delay, a Surrogate has full power to allow the suit ; and may even, in case of litigation pending at the time of the death or disappearance of the person whose estate is being administered, direct the substitution of the temporary administrator as defendant, provided, of course, the cause of action survives. Oetly v. Amelung, 7 Albany Law Journal, 415. § 16. Power of temporary administrator in regard to debts. — The power of a temporary administrator to ascertain the claims against the estate and in certain cases to pay them, is now fully regulated by the Code, as follows : General powers, etc., as to requiring creditors to present claims. After six months have elapsed, since letters were issued to a temporary administrator, appointed upon the estate, of either a decedent or an absentee, he has the same power, as an administrator in chief, to publish a notice requiring cred- itors of the decedent or absentee, to exhibit their demands to him. The publication thereof has the same effect, with respect to the temporary administrator, and also an executor or administrator, subsequently appointed upon the same es- TEMPOBAKY ADMINISTRATION. 661 tate, as if the temporary administrator was tiie executor or an administrator in chief, and the person to whom the subse- quent letters are issued was his successor. § 2673, Code Civil Proc. General powers as to paying debts. After a year has elapsed, since letters were issued to a tem- porary administrator, appointed upon the estate, of either a decedent or an absentee, the surrogate may, upon the appli- cation of the temporary administrator, and upon proof, to his satisfaction, that the assets exceed the debts, make an order, permitting the applicant to pay the whole or any part of a debt, due to a creditor of the decedent or absentee ; or, upon the petition of such a creditor he may issue a citation to the temporary administrator, requiring him to show cause why he should not pay the petitioner's debt. When such a petition is presented, the proceedings are, in all respects, the same as where a creditor presents a petition, praying for a decree directing an executor or administrator to pay his debt, as prescribed in article first of title fourth of the chapter. § 36 T4, Code Civil Proc. A temporary administrator is not, therefor, hound to pay debts. He can only do so when authorized. Matter ofPhilp, 29 Misc. 263. It will be noticed that the power of the Surrogate to author- ize such an administrator, after a year has elapsed, to pay the whole or part of a debt presented pursuant to the notice re- quired by section 2673, either upon the application of the tem- porary administrator or upon the petition of a creditor, while stated by section 267i to be, in respect to the proceedings thereon, similar to cases where such application is made for a decree directing an executor or administrator to pay a debt, is limited to cases where it is proved to the satisfaction of the Surrogate that the value of the total assets left by the decedent or the absentee is greater than the amount of all the debts. When this is demonstrated to the satisfaction of the Surrogate, the temporary administrator will be permitted, just as if he were administrator in chief, to use his own discretion re- specting payment of persons claiming to be creditors. Mason V. Williams, 3 Dem. 285, Kollins, Surrogate. And in such a case the Surrogate should grant permission to discharge debts which bear no indication of mistake, exorbitance or fraud. 662 surrogates' courts. The objection of persons interested to the payment of a spe- cific item should be reserved until the accounting, as the Code makes no provision for the trial of issues raised by such per- sons interested at the time of granting leave to pay the claims. Mason v. Williams, supra, reported sub nom. Estate of Hor mersley, 15 Abb. N. C. 187. See also In re Haskett, 3 Red'f. 165. In Matter of Philp, 29 Misc. 263, the headnote suggests that a temporary administrator may, if the personalty is in- sufficient to pay all the debts in full, make pro rata pay- ments. This seems to be more than the opinion warrants. Sec- tion 2674, as above noted, is explicit in making it a condition of granting leave to pay debts at all that the assets is greater than the amount of all the debts. But this case properly held that as the temporary administrator had, without permission of court, paid a number of unpreferred claims, he should be sur- charged that excess which represented the difference between what he paid and what would have been the fro rata share of the creditors to whom he made payment. To this surcharge trust company interest was added, as he had acted without bad faith supposing the real estate of testator to be available for sale to pay the other debts. § 17. The temporary administrator and the transfer tax. — The transfer tax law(j. v., post, page 1088) provides for a sus- pension or remission of penalty for delay in paying the tax when the executor is prevented from acting by reason of legal proceedings on contested probate. There seems to be no valid reason however why the temporary administrator should not pay the tax and move primarily in the matter, in order to save to the estate the amount of the discount which is allowed by the act. But of course he cannot do this if the contest makes it doubtful what persons are to take, and how much they are to take. In case of an appointment under subdivision 2, i. e., a case of disappearance, it would seem that to enable the State to assess and collect the tax, the fact of death would have to be affirmatively established, and not merelv the " reasonable grounds," etc., upon which the Surrogate may appoint. § 18. Temporary administrator and the real property of the estate. — The Code confers upon the Surrogate power to TEMPORAKY ADMINISTRATION. 663 give the temporary administrator authority to take possession of the real property of a decedent or absentee, to receive the rents and profits thereof, and upon application to lease or do any other act with respect thereto except to sell it. The sections are as follows : When a temporary administrator is appointed and a pro- ceeding is pending for the probate of a will of realproperty, or there is a delay in the granting of letters testamentary or administration on such a will, or in the qualification of a trustee named therein, the order appointing him may confer upon him authority to take possession of real property, in the same or another county, which is affected by the will, and to receive the rents and profits thereof. The surrogate may, by an order, confer upon him authority to lease any or all of the real property, for a term not exceeding one year ; or to do any other act with respect thereto, except to sell it, which is, in the surrogate's opinion, necessary for the execution of the will, or the preservation or benefit of the real property. For either of these purposes, he may maintain or defend any action or special proceeding. § 3675, Code Civil Proc. A temporary administrator, appointed upon the estate of an absentee, has all the powers and authority enumerated in the last section, with respect to the real property of the absentee. His acts, done in pursuance of that authority, bind the ab- sentee, if he is living, or his heir or devisee, if he is dead, in the same manner as the acts of an executor or administrator bind his successor. § 3676, Code Civil Proc. The general tenor of the decision in the Hamersley case, 3 Dem. 285, sub nom. Mason v. Williams, is that while the Surro- gate may confer authority upon the temporary administrator in respect to his payment of debts or his dealing with the real estate, he will not usually direct a temporary administrator to do such acts as would be left to the discretion of an administrator in ■ chief ; he may he authorised to do them, in which case his failure to avail himself of the authority could be called in question at the time of his accounting, and could be then justified by proof of the existing conditions and facts. It has been held, for ex- ample, that a special administrator could not be required to pay or buy in a mortgage which the mortgagee was foreclosing upon part of decedent's real estate. Matter of Dooley, 3 Law Bui- 664 SURROGATES COURTS. letin, 18. On the other hand the power of a temporary admin- istrator in regard to real estate depends wholly upon the statute, and upon the authority of the Surrogate evidenced in the order appointing him, or in a subsequent order made upon proper application ; so a temporary administrator has no authority to mortgage the real estate of the decedent or absentee by virtue of his office. As temporary administrator he takes no title to the real estate of the decedent, or absentee, and can by no act of his, by virtue of his office, sell, charge or encumber it, or in any way affect or prejudice the rights of heirs or devisees. The provisions of the Code as to the power of Surrogates in respect to the sale or mortgage of decedent's real estate for the pay- ment of debts (see section 27i9 et seq.), expressly provide that an application for leave to sell or mortgage real estate must be made by an executor or administrator other than a temporary administrator. § 2750, Code Civ. Proc ; Duryea v. Maclcey, 151 N. Y. 204, 207, Andrews, Ch. J. §19. Providing for family of absentee. — Section 2677 gives the Surrogate power to direct the maintenance of an absentee's family in a case expressly falling within its provi- sions. The section is as follows : Upon proof, satisfactory to the surrogate, that the wife or any infant child of an absentee, upon whose estate a tempo- rary administrator has been appointed, is in such circum- stances as to require provision to be made out of the estate for his or her maintenance, clotliing, or education, the surro- gate may make an order, directing the temporary administra- tor to make such provision therefor, as the surrogate deems proper, out of any personal property in his hands, not needed for the payment of debts. § 3677, Code Civil Proc. It would seem, under this section that, as the provision is statutory and, therefore, to be strictly construed, the Surrogate would be without power to direct the temporary administrator to make provision for the maintenance, clothing, or education of the wife or infant child of an absentee within the time provided by section 2673, Code Civ. Proc, within which it is possible for the temporary administrator to ascertain the amount of the debts, for section 2677 limits the funds out of which such pro- vision may be made, " to the personal property in the hands of TEMPORARY ADMINISTRATION. 665 the temporary administrator not needed for the payment of debts." However, the intent of the statute being clear, it would be proper for a Surrogate upon satisfactory proof that the wife or infant child is in the needy circumstances contemplated by the section to exercise his power to direct provision to be made, upon satisfactory proof by the administrator or otherwise as to the extent of the debts of the absentee. § 20. How long temporary administrator may act. — The functions of a temporary administrator of a decedent continue until the qualification of the executor or of the administrator in chief; that is to say until the issuance of permanent letters. So, pending an appeal from a' decree admitting a will to pro- bate, a temporary administrator will not be ousted at the in- stance of the executors named in the will, except the "preser- vation of the estate " within the intent of section 2582 of the Code shall require it (see ante, pp. 255 and 581). And that con- dition cannot be said to exist where the temporary administrator has given ample security and there is nothing in the estate ne- cessitating the exercise of executorial functions as opposed to what the temporary administrator can lawfully do. Matter of Gihon, 27 Misc. 626, aff'd 48 App. Div. 598. It is not neces- sary that an application for the revocation of letters of tem- porary administrators of decedents should be made. The very terra temporary administrator suggests that the authority of such an officer is to be deemed extinguished by the issuance of letters testamentary or letters of administration in chief. Matter of Eisner, 5 Dem. 383, 387 ; Matter of Lewis, 17 Weekly Dig. 311. But in the case of a temporary administrator of an absentee, that is, one appointed under subdivision 2 of sec- tion 2670, Code Civ. Proc, it seems clear that his functions do not determine until proceedings initiated by petition under sec- tion 2685 shall have been had. The portion of such section referring to this subject-matter is as follows : In either of the following cases a creditor or person inter- ested in the estate of the decedent, may present to the surro- gate's court, from which letters were issued to an executor or administrator, a written petition, duly verified, praying for a decree revoking those letters ; and that the executor or ad- ministrator may be cited to show cause why a decree should not be made accordingly. 666 surrogates' courts. Subd. 8. In the case of a temporary administrator ap- pointed upon the estate of an absentee where it is shown that the absentee has returned ; or that he is living, and capable of returning and re-assuming the management of his affairs ; or that an executor, or administrator in chief, has been ap- pointed upon his estate ; or tbat a committee of his property has been appointed by a competent court of the state. § 2685, Code Civil Proc. § 20a. Accounting.— When permanent letters issue or the letters of the temporary administrator are revoked pursuant to proceedings had under sectioif 2685, subd. 8, quoted above, it is then his duty to account. The Surrogate's Court may compel a judicial settlement of the account of a temporary administrator at any time. % 2726, subdivision 4, Code Civ. Proc. But the temporary administrator has no absolute right to demand a judicial settlement at any time; and the practice seems to be that his account will not be judicially passed upon and finally settled until final letters testamentary or of admin- istration in chief are issued and the executor or administrator in chief is capable as being joined as a party to the accounting proceedings. American Bible Society v. Oakley, 4 Dem. 450, EoUins, Surrogate. Section 2743 of the Code is not applicable. Matter of Philp, 29 Misc. 263. Therefore he is not called upon to make any distribution, but when his account is judicially settled he will be directed to pay the balance in his hands to the holder of permanent letters. Ibid. Or, if his letters were revoked by reason of the reappearance of the supposed decedent, he may be required to surrender the property to him. Where, under section 2675, he has been directed to take possession of the real property, the decree should contain appropriate direction as to that. Where the temporary administration becomes the per- manent representative, and after accounting, merely turns over the balance to himself as executor or administrator, it is clear that the decree discharging him as temporary administrator has no conclusive effect on the cestuis que truatent under the will as to the fund against which, or out of which any particular pay- ment is made. The executors receive the balance, and must adjust the various funds or interests. Thus, where a tempo- rary administrator paid taxes upon real property, subjected by TEMPOKABY ADMINISTBATION. 667 will to a trust, it was held to be the executor's duty to adjust it and charge it against the general estate rather than the trust estate, and if it were not so done the beneficiaries could come in on accounting regardless of the decree discharging the tem- porary administrator and have the charge readjusted. Mat- ter of Doheny, 70 App. Div. 370, 375. His right to commissions is the same as that of other repre- sentatives. Where he has been empowered to continue the business of the supposed or actual decedent, this falls within those extra-ofiicial duties for which proper additional com- pensation can, in the Surrogate's discretion, be allowed upon the accounting. Matter of Moriarity, 27 Misc. 161, citing Lent V. Howard, 89 N. Y. 169 ; Matter of Braunsdorf, 13 Misc. 666 ; Matter of McCord, 2 App. Div. 324. See Eussell v. Hil- ton, 37 Misc. 64:2. § 21. The procedure upon appointment. — As is intimated in section 7 above, an application for temporary administration can be made in two diiferent forms. Under subdivision 1 of section 2670, the appointment must be made by order, the ap- plication for which is of course upon motion, which as inti- mated in the Code must be noticed at least ten days prior to the return day, " unless the Surrogate is satisfied by proof that the safety of the estate requires the notice to be shortened," in which case it may be shortened to not less than two days. The following precedent is suggested for the notice : Surrogate's Court, County of (Here give title of the pro- Kotice of mo- ceeding in which the delay in t i n for ap- ^^^, granting of letters has oc- p ointment of , ., ,. ,, ,. f „ , „ J curred necessitating the appli- temporary ad- » ri' ministrator. cation.) Please take notice that on the annexed aflBda- vit of verified the day of copy of which is hereto annexed, and on all the proceed- ings heretofore had herein, I shall ingve before N t In New *^® Surrogate of this county at a special term of York C o u-n t y his court to be held at (note) in on name a regular the day of at o'clock in the noon motion day. of that day for an order appointing as 668 SUKKOGATES' COURTS. temporary administrator of the goods, chattels and credits of the above named decedent and for such other and further relief in the prem- ises as to the said Sm-rogate may seem just. (Date.) Attorney for OflSce and post-office addresses. This motion should be addressed under sec- tion 2670, to each pai'ty to the proceeding who has appeared. The affidavit upon which such motion is to be made, should contain all the jurisdictional facts, and the following precedent is suggested : AtDdavit o u motion for ap- pointment of temporary ad- ministrator. ss. ; Surrogate's Court, County of Same title as > foregoing. | State of New York, County of being duly sworn deposes and says : I. I a.m {here state status of applicant in the pending jifoceedings and relationship to decedent) . II. That the above entitled proceeding com- menced on the day of being a proceed- ing for the {say for the probate of the will of deceased, or for the granting of letters of administration upon the goods, chattels and credits of deceased), and that and and are the only parties who have appeared in such proceeding. III. That delay has necessarily occurred in the granting of letters (testamentary or of ad- ministration as the case may be) in consequence of {say, a contest arising on such application for the probate of said will or the application for let- ters of administration or in consequence of the absence from the state of an executor named in the will, or for whatever cause is proper under section 2670, subdivision 1). IV. That the property of the above named decedent consists of {here specify nature of prop- erty, whether real or personal, or both j if real TEMPOKAKY ADMINISTRATION. 669 State whether' it is rentable and has any rental income necessitating the appointment of the ad- ministrator for its collection) . V. Your petitioner has (caused to be) ascer- tained and estimated the value of the said prop- erty and verily believes the same to be as follows : Of the rental property not to exceed dollars, the rental income of which does not exceed dollars, and of the personal property not to ex- ceed dollars. VI. That it is necessary, in order to the pres- ervation of the estate of such decedent, that a temporary administrator thereof be appointed by the Surrogate, and deponent says that is a person competent to serve as such temporary administrator. (Jurat.) (Signature.) Upon the return day the Surrogate, upon inquiry into the facts, and upon being satisfied that it is necessary for the safety of the estate that a temporary administrator be appointed, may make the following order : Surrogate's Court Caption. Order for Title. \ letters of tempo- ) rary a d m i n i s- trator n n d e r -^ motion having been made in the above en- subdivision 1 of titled proceeding on behalf of a party section 2670. thereto, for an order appointing a temporary ad- ministrator of the goods, chattels and credits of the decedent above named, and ten days' notice of said motion having been duly given to all the parties who have appeared herein, and proof of the service of such notice of mo- tion being duly filed {or if the Surrogate has per- mitted shorter notice to be given under section 2^10 state the fact). Now on reading and filing the affidavit of verified the day of 18 and on all the papers and proceedings heretofore had 670 SUEEOGATES' COUKTS. herein, and after hearing {here specify parties who have appeared upon the return day in sup- port of or opposition to the motion'), and the Surrogate being satisfied that a delay has neces- sarily occurred in the granting of letters (testa- mentary or of administration) herein, and that a temporary administrator ought to be appointed of the goods, chattels and credits of the decedent above named, and also that (and ) is {or are) a person competent and qual- ified to serve. Now on motion of attorney for said it is hereby Ordered, that temporary administration on the goods, chattels and credits of said the above named decedent, be and the same hereby is granted to said and that letters of tem- porary administration upon the goods, chattels and credits of said decedent issue to the said A. B. upon executing and filing {here specify amount and character of the bond required, which must be such a bond as is prescribed with respect to an administrator in chief, and its amount is determined by the amount of ihe estate fixed by the affidavits or proof upon the heanng) . And it is further Ordered, {here incorporate such direction as may be necessary in regard to taking possession of the premises belonging to the decedent, collecting the rents, issues and profits thereof, and any other acts permitted under sec- tion 2672 of the Code) until the further order of this court in the premises. And it is further Ordered, {here incorporate such directions as the Surrogate may require, des- ignating a depositary of the funds coming into the hands of the temporary administrator). Surrogate. "Where the application is under subdivision 2 of section 2670 it must be made by petition, and is a special proceeding of itself, not to be entitled in any other proceeding. See discus- sion, supra. The following petition is suggested as a precedent : TBMPOEABY ADMINISTRATION. 671 Petition for the appointment of a temporary ad- ministrator uu- der snbdiTision 2 of section 2670, C. C. P. Surrogate's Court, County of In the Matter of the Applica-^ tion of for Letters of Temporary Administration upon the estate of (^describe absentee as a luna- tic, or otherwise, in the lan- guage of sitbdlvision 2) . y To the Surrogate's Court of the County of The petition of respectfully shows to the court and alleges : I. That formerly of in the county of possessed of real and personal estate within said county, over the administration of which the Surrogate thereof would have jurisdic- tion if said were shown to be dead, has disappeared, or is missing, and his abode cannot be ascertained although diligent search has been made (or caused to be made) by your petitioner {liere state the circuvistances which under the sec- tion afford reasonable ground to believe that he is dead, or that he has become a lunatic, or that he 'has been secreted, confined or otherwise unlaw- fully made away with. These facts should be stated fiilly and clearly.) II. That the property of such absentee or lun- atic, etc., consists of (here state condition and amount of property substantially as in above affi- davit, so as to show necessity for temporary ad- ministrator and including estimate of value of same) . III. That the names, residences and ages of all persons interested in the estate of such ab- sentee, as next of kin (widow or otherwise), as nearly as they can be ascertained by your peti- tioner are as follows : IV. That your petitioner is (here state either a creditor or a " person interested," stating kin- ship, residence, etc, of the applicant). V. Wherefore, your petitioner prays that tem- porary administration on the goods, chattels and credits of the above named absentee, may 672 StJKROGATES' COUKTS. be granted, and that a person competent and qualified to serve may be appointed tempo- rary administrator thereof, and letters of tem- porary administration may be issued to him according to law, and that and and may be cited to show cause why letters of administration should not be issued to him as herein prayed. (Date.) (Signature.) (Verification.) Upon the return day fixed by the citation issued upon this petition, the Surrogate must take proof of the facts as to the disappearance or presumptive death of the absentee, and as to the qualification and competency of the persons to whom letters are prayed to be issued. If he is satisfied that letters should issue he may make an order substantially as above indicated, except that it should begin : On reading and filing the petition of dated the day of to the Surrogate of the county of for the appointment of a tempo- rary administrator of the goods, chattels and credits of the above named absentee, to- gether with proof of due service of the citation issued upon such petition upon all the parties therein cited (here add appearances, or say, if such is the case, none of such parties having ap- peared upon the return day, and then proceed as in the foregoing order) . The following form of letters is indicated: The People of the State of New Yoek To send Greeting : Whereas, a paper has been propounded for Probate before the Surrogate of the County of "Westchester, as the last will and testament of deceased, and a contest exists relative to such Probate, and a delay is thereby neces- sarily produced in granting letters testamentary Note. Where or of administration upon the estate of said de- the temporary ad- ceased ; (note) TEMPORARY ADMIKISTRATIOK. 673 ministratiou is granted under subdivision 2 of section 2670, say: ■'Wlieieas, it iippears to the satisfaction of the Surrogate of the county of that a person of whose estate the said Surrogate would have juris- diction if such were shown to be dead, has dis- appeared or is missing, so that lifter diligent search his abode cannot be ascer- tained," etc., fol- lowing the language of sub- division 2. Know ye, that we, being desirous that the goods, chattels and credits of said deceased may- be collected and preserved, do grant unto you the said full power, by these presents to take into your possession the personal pi'op- erty of the said deceased (or absentee), and to secure and preserve it with all the authority and power conferred upon you by Law hereby re- quiring you to make, immediately, a true and perfect inventory of all and singular the goods, chattels, or credits of said deceased and return the same to our said Surrogate, within three months from the date of these presents, and also to render a just and true account of your administration as such Temporary Administra- tor, whenever required by our said Surrogate, and faithfully to deliver up the goods, chattels and credits of said deceased to any person or persons who shall be appointed Executors or Ad- ministrators of the said deceased (or ab- sentee), or to such other person as shall be authorized to receive the same by said Surrogate. In Testimony Whereof, &c. Surrogate. § 22. Serying notices. — The Code contains special provision for giving the notices called for by article V, title 3, on tem- porary administration, as follows : Notices required by this article ; horv given. A notice required to be given, as prescribed in this article, to a party other than the temporary administrator, must be served upon the attorney of the party to whom notice is to be given ; or, if he has not appeared by an attorney, upon the party, in like manner as a notice may be served upon an attorney iu a civil action, brought in the supreme court. But where the attorney or party to be served does not reside ia the surrogate's county ; or where the attorney for a party has died, and no other appearance for that party has been filed in the surrogate's office ; the surrogate may, by order, dis- pense with notice to that party ; or may require notice to be given to him, in any manner which he thinks proper. § 368 1, Code Civil Proc. 43 CHAPTER IV. LETTEES OF ADMINISTEATION. § 1. What is an intestate. — An intestate is a person who dies without leaving any valid will disposing of his real or per- sonal property. Section 2514, subd. 1 reads : " The word ' intes- tate' signifies a person who died without leaving a valid will ; but where it is used with respect to particular property, it signi- fies a person who died without effectually disposing of that prop- erty by will, whether he left a will or not." See Matter of Cameron, 47 App. Div. 120, 123. A person may die intestate, (a) Who has never made anj' will. {b) Who has made a will but revoked it validly prior to his death. (e) Who has made a will defectively executed so as not to be entitled to probate under the statute. So a man may leave a will valid to pass personal but not real property. He will then be intestate as to the one class of property. But where the Code refers generally to an intestate it means a case of total intestac}^ Thus section 2733 provides for reckoning in advancements to the child of " an intestate" as part of his estate. Held, inapplicable to case where dece- dent left a will, admitted to probate, but subsequently adjudged invalid in its disposition of the remainder. Messman v. Egen- herger, 46 App. Div. 46, 50, citing Tliom/pson v. Carmichael, 3 Sandf. Ch. 120 ; Kent v. Hoplins, 86 Hun, 611. (See p. 1479, post.) The administration of the estates of intestates is conducted according to the statute of distributions by means of an officer appointed by a Surrogate, selected by him by virtue of sec- tion 2660 of the Code to whom letters of administration are issued, which are the source of authority of administrators as distinguished from the will, which is the source of authority of executors. But, where executors find in their hands an unbe- queathed residuum, it is not necessary to have an administrator appointed to distribute. The executor may distribute under the statute. See^ost, p. 1502. Where a wife makes an ante- (674) LETTEES OP ADMIKTSTRATION. 675 nuptial agreement that if her husband survive he shall have ab- solute title to all her personal estate " left by her," he takes the residuum left after due administration. He cannot reduce it to immediate possession directly as against the executor of her will. Foehner v. Huher, 42 App. Div. 439, and cases discussed. § 2. Prerequisites to jurisdiction.— The foundation of the Surrogate's authority apart from the questions of residence and of locus of property is first, the death of the intestate, second, the intestacy. The Surrogate must be satisfied as to the death of the person upon whose estate administration is applied for. A mere allegation that the alleged decedent is dead to the best of petitioner's knowledge, information and belief is insufficient. Roderigas v. E. R. Sav. Inst., 76 N. Y. 316. Actual physical death is contemplated and not civil death. So where a man was indicted, tried and convicted of the crime of murder in the second degree and sentenced to state prison for life, and his only brother applied for letters of administration, it was held that the provisions of the Code of Civil Procedure from which Surrogates derive their authority to grant letters of administra- tion, have no application to a case of civil death, but apply only to cases of actual death. Matter of Zeph, 50 Hun, 523. See Avery v. Everett, 110 N". Y. 317, opinion of Andrews, J., dis- cussing the meaning and effect of civil death. § 3. Presumption of death — The common-law rule was that the continuance of life should be presumed until the con- trary was shown. But the present rule which has been com- monly acted upon by Surrogates, and is now generally ac- cepted, is, that when a party has been absent seven years since any intelligence of him has been received, he is in con- templation of law presumed to be dead. Eagle v. Emmet, 4 Bradf. 117 ; followed in Seligmam v. Sonneborn, 1 How. Pr. N. S. ; Matter of Sullivan, 51 Hun, 379; Matter of Davenport, 37 Misc. 455. This length of time may be abridged and the pre- sumption be applied earlier by proof of special circumstances tending to show the death within a shorter period ; for ex- ample, that at the last accounts, the person was dangerously ill, or in a weak state of health, or suffering from chronic in- curable disease, or was exposed to great perils of disease or accident, or that he embarked on board of a vessel which had not since been heard from though the length of the usual voyage has long since elapsed. Eagle v. Eminet, supra. See 6T6 StTEEOGATES' COURTS. English cases cited at page 120. Section 8il of the Code prescribes that a person upon whose life an estate in real prop- erty depends, who remains without the United States, or ab- sents himself in the State or elsewhere for seven years to- gether, is presumed to be dead in an action or special proceeding concerning the property in which his death comes in question, unless it is affirmatively proved that he was alive within that time. It has been held that the proof of absence for seven or more yeai's must not necessarily be direct and positive, but that such absence may be fairly inferred from facts which clearly point to that conclusion. Cromwell v. Phillips, 6 Dem. 60, 69. So, where it appeared by affidavit that the al- leged decedent had been an educated man, industrious and sober, until he lost his wife, when he became dissipated, and finally underwent an attack of delirium tremens the night be- fore he went away, and that while suffering greatly from his debauch and that attack, he left his home expressing his in- tention of committing suicide, going towards a certain dock, and was never again seen or heard from by any of his friends, held, that from such silent absence during ten years it was proper that a presumption of death should be raised. Matter of Nolting, 43 Hun, 456; Sheldon v. Ferris, ^^ Barb. 124; King v. I'addock, 18 Johns. 141. Mere absence will not raise a presumption of death where there are no circumstances which would make it probable that the absentee would com- municate with his home, or where it appears that he was illiterate. Matter of Miller, 30 N. Y. St. Eep. 212 ; McCartee V. Camel, 1 Barb. Ch. 455. So where a person immigrated from a foreign country without intending to return, no pre- sumption of death arises until proper inquiry has been made at his last known place of residence in this country. Mat- ter of White, 31 Misc. 484. So, where A emigrated in 1852 to New Zealand and was never heard from after 1855 ; never communicated with his family, and in 1886 became, if living, entitled to a share in the estate of a rich testator as the child of a deceased cousin, and, on an application to distribute his share on the ground of his death, it appeared no effort had been made to find or trace him in New Zealand, where he was last heard of, it was held proper to refuse to distribute, and there were not sufficient facts on which to base a presumption of his death or of his death without issue. Dunn v. Travis, LETTERS OF ADMINISTRATION. 677 56 App. Div. 317 ; Vuught v. Williams, 120 N. Y. 253 ; Dwor- sl(y V. Arndtstein, 29 App. Div. 274. See also Morroio v. Mo- Mahon, 35 Misc. 348, and discussion in Czech v. Bean, 35 Misc. 729. It has been held that hearsay evidence is admissible as to the fact of a person's death. Matter of Stewarfs Will, 3 N". Y. Supp. 284, Eansora, Surr., citing Fosgate v. HydrauliG Co., 12 Barb. 352 ; Jackson v. Bonhain, 15 Johns. 226. See People v. Mz, 5 Cowen, 314 ; Clarh v. Owens, 18 N. Y. 434. But this rule has been limited by holding that it is to be ad- mitted to rebut the presumption oE life only after a consider- able lapse of time. Stouvenel v. Stephens, 2 Daly, 319. But hearsay evidence is inadmissible to prove the place of a per- son's death. McCarty v. Terry, 7 Lansing, 236. In Matter of Stewart, above cited, where the decedent had gone in his yacht upon a voyage to be of about twenty days, to a speci- fied destination, and the vessel was spoken on a certain day at a given point, over which shortly thereafter a storm of great intensity raged, and the vessel never reached its destina- tion, nor was any news ever heard afterwards by the friends of the decedent, although they exhausted apparently every source of information. Surrogate Ransom held there was suffi- cient evidence of the death to warrant proceedings in the Sur- gate's Court with a view to the administration of his estate under his will, using the following language : " It is well settled that it is not necessary that any specific period should elapse to create the presumption of death, but that it may arise whenever the facts of the case will warrant it. Stouvenel^. Stephens,'>iY)?XY,2>\%. Andif the party whose death is in question went to sea, and nothing has been heard of the vessel in which he sailed, or of those who accompanied him, the presumption, after a sufficient length of time has elapsed, will be that the vessel was lost, and that all on board perished. Merritt v. Thompson, 1 Hilt. 550, and cases cited. In the following cases such facts existed. Matter of Ketcham?s Extate, 5 N. Y. Supp. 566 ; Matter of Ackerman, 2 Redf. 521 ; Sheldon v. Ferris, 45 Barb. 124 ; Oppenheim v. Wolf 3 Sandf. Ch. 571 ; Gerry v. Post, 13 How. Pr. 118 ; Merritt v. Thompson, 1 Hilt. 550; King v. Paddock, 18 Johns. 141; McCarteer. Camel, 1 Barb. Ch. 455. Y/here, when last heard from, one was in contact with some specific peril, this circumstance may raise a presumption of death, without regard to the duration of 678 surrogates' courts. the absentee. Lancaster v. Insurance Co., 62 Mo. 121; Wliite Mann, 26 Me. 361. In Merritt v. Thompson, supra, it was held that the presumption of death does not rest upon the fact that the party had not been heard from for 17 months, but on the weightier circumstance that the vessel had not been heard from. In Gernj v. Post, 13 How. Pr. 118, it was held that, if a vessel had been absent double the longest time of a voyage, she may be presumed to be lost ; and it follows, as a con- sequence, that all perished with her, if none of the passengers or crew are afterwards heard of. " On March 11, 1841, one Leo Wolf departed from New York in the steamship President. Nothing was heard of the vessel or of her passengers. The usual time to cross the Atlantic was 14 or 15 days, and the longest passages did not exceed 23 or 24 days. It was held that the steamer was lost before I\[ay, 1841, and that Leo Wolf's death occurred before that time. Oppenheim. v. IFoZf, 3 Sandf. Ch. 623. I am convinced by the evidence that Mr. Stewart is dead, and that his death occurred between the 10th day of March, 1888, and the 17th day of Sep- tember, 1888, the date of the petition herein." See also Kar- stens v. Karstens, 20 Misc. 247, at page 250, Eussell, J. The presumption is strengthened in cases of a person who has at- tempted or threatened suicide. Matter of Nolting, 43 Hun, 456; Sheldon v. Ferris, 45 Barb. 124; MoComh v. Wright, 5 Johns. Ch. 263; Matter of Ketcham, 5 N. Y. Supp. 566; Mat- ter of Allen, 24 N. Y. St. Eep. 251. Cases have- arisen where there has been a conflict of two presumptions, for example, a woman who had previously been married and whose husband disappeared in the year 1875, having previously been tried and convicted upon a criminal charge and confined in state's prison until September, 1878, at which time he came to the city of New York and was arrested for the crime of burglary, and, after giving bail, disappeared, and there was no legal or satis- factory evidence that at any time, or in any place, he had since been seen b\' any human being, and five years later the woman married again : Surrogate Rollins held, upon an application by the woman for letters of administration on the estate of her second husband which was opposed by his sons on the ground of her being still the lawful wife of the man to whom she was first married, that the presumption of continuance in life of her first husband must yield to the presumption of her innocence LETTERS OP ADMINISTRATION. 679 of the crime of bigamy. Neslit v. Nesbit, 3 Dem. 329, 332. The learned Surrogate held as follows : " This presumption in favor of seven years' continuance of life has been repeatedly held, however, to be inferior in force to the presumption of innocence, where the two have come in conflict ; and the doctrine is now firmly established, that one who enters into a second marriage, the validity of which is at- tacked upon the grounds urged by the respondents in the pres- ent intention, must be presumed legally competent to contract such marriage until positive proof has been furnished that his or her former wife or husband was living at the time of such second marriage. Dixon v. People, 18 Mich. 84; Klein v. Landman, 29 Mo. 259 ; Sharp v. Johnson, 22 Ark. 79 ; Green- loro V. Underhill, 12 Vt. 604 ; Hull v. Eaiols, 27 Miss. 471 ; Cochrane v. Libhy, 18 Maine, 39 ; Spears v. Burton, 81 Misc. 547 ; Gibson v. State, 38 id. 313 ; Yates v. Houston, 3 Tex. 433 ; Lockhart v. White, 18 id. 102 ; Oanady v. George, 6 Rich. Eq. S. C, 103 ; Loring v. Steineman, 1 Mete. 204 ; Kelly v. Drew, 12 Allen, 107; Blanchardv. Lambert,4z^lo\va,,22%; Matter of Edwards, 58 id. 431 ; Senser v. Bower, 1 Penrose & Watts (Pa.), 450. " The doctrine of the cases just cited seems to be approved in Clayton v. Wardell, 4 N. Y. 230 ; and in 6*' Gara v. Eisenlohr, 38 N. Y. 296, it is recognized by ICason, J., pronouncing the opinion of the Court of Appeals, though he proceeds to show why the presumption of innocence should not, upon the facts of the case, be allowed to prevail. " Upon the foregoing authorities, I feel bound to hold (in the absence of evidence establishing that, at any time between the winter of 1878 and January, 1883, Oscar Decker was living) that, when John Nesbit died, this petitioner was his lawful wife. Even if I make a far less rigid application than the au- thorities above cited seem to require of the presumption of innocence, as conflicting with the presumption of life, I can come to no other conclusion than that which has just been de- clared." Where a court is led to indulge the presumption of death from a seven years' absence, the date of death cannot of course be fixed. But as, in such cases, death would not be pre- sumed until the time fully elapsed, so the end of the period may be taken as the date of death merely to determine Avho are the survivors and entitled to the estate. Matter of Daven- 680 STJREOGATES' COUETS. fort, 37 Misc. 455. In this case a brother surviving after the seven year period was held entitled to the exclusion of heirs of a sister dying before it elapsed. § 4. Proof of intestacy. — Ordinarily, however, the fact of death is proved as any other fact, without resorting to presump- tion, and the second essential prerequisite to letters of adminis- tration, to wit, the fact of intestacy remains to be proved. This is ordinarily shown by evidence that no will can be found al- though proper search has been made therefor among the papers of the decedent. This fact must be proved to the satisfaction of the Surrogate, who may summon witnesses before him, such as persons having the custody of the decedent's papers, and cause them to be examined in regard to the nature and extent of the search made. Bulkley v. Redmond, 2 Bradf. 281, 285. If it appear that there has been a will, although it may be claimed that the said will was revoked, or for any reason invalid, the Surrogate will not grant letters of administration in chief pending the necessary proceedings to determine whether or not the instrument in question is in fact the decedent's last will and testament. Matter of TaygarHs Estate, 16 N. Y. Supp. 514 ; Bulkley v. Redmond, supra. When letters have once been granted it will be presumed that the fact of death and intestacy was properly proved before the Surrogate, particularly where there are recitals of the jurisdictional facts in the letters of administration. Johnson v. Smith, 25 Hun, 171, citing West- cott V. Cody, 5 Johns. Ch. 334, 343 ; Bolton v. Brewster, 32 Barb. 389, 394 ; Van Deusen v. Sweet, 51 N. Y. 385 ; Porter v. Purdy, 29 N. Y. 106 ; Dayton v. Johnson, 69 N. Y. 419, 426. And the letters of administration issued by a Surrogate cannot be questioned collaterally when regular on their face. Farley V. McOonnell, 7 Lansing, 428 ; Monell v. Denison, 17 How. Pr. 422 ; Kelly v. West, 80 IST. Y. 139 ; Leonard v. Columbia Steam Co., 84 N. Y. 48. But the letters may be attacked directly upon jurisdictional grounds in proceedings to revoke or set them aside. Kelly v. West, supra; Matter of Patterson, 146 N. Y. 327. § 5. Existence of property and jurisdiction of Surrogate. — The application is of course to be made to a Surrogate having jurisdiction. As against other Surrogates of the State the jurisdiction may be conditioned by decedent's residence. Mat- ter of Hyland, 24 Misc. 357. There is no occasion for the LETTERS OF ADMINISTRATION. 681 exercise of jurisdiction of the Surrogate to grant letters of administration if there is no property to be administered. But a right of action arising out of death of intestate is an asset on which an administrator may be appointed, and may sue under sections 1902-1904 of the Code. This fact of existence of per- sonal property within the county over which the Surrogate has jurisdiction ought to be alleged in the petition. See sec- tion 2662 discussed below. If, however, it is not so stated, but the fact is made to appear to the satisfaction of the Surro- gate before he passes upon the petition for letters, the statutory requirement as to this jurisdictional fact will be met. The re- cital in the letters of the existence of such assets \% prima facie evidence of their existence. 0"" Connor v. Huggims, 113 j^f. Y. 511, 516. The decision in Hart v. Coltrain, 19 Wend. 378, turned upon the peculiarly limited statute in force at that time giving the judge of probates power to grant letters of adminis- tration upon the estate of a non-resident, which was distinctly held not to depend upon the question whether the decedent left assets within the State. The jurisdiction of a Surrogate to grant letters of administration is defined by the subdivisions of § 2476 which provide that the Surrogate's Court of any county has jurisdiction exclusive of every other Surrogate's Court to grant letters of administration in any one of the following cases : 1. Where the decedent was, at the time of his death, a resi- dent of that county, whether his death happened there or else- where. 2. Where the decedent, not being a resident of the State died within that county, leaving personal property within the State, or leaving personal property which has since his death, come into the State, and remains unadministered. 3. Where the decedent, not being a resident of the State died without the State, leaving personal property within that county, and no other ; or leaving personal property which has, since his death, come into that county, and no other, and remains un- administered. 4. Where the decedent was not at the time of his death, a resident of that State, and a petition for probate of his will, or for a grant of letters of administration, under subdivision sec- ond or third of this section, has not been filed in any Surro- gate's Court ; but real property of the decedent, to which the 682 subrogates' courts. will relates, or which is subject to disposition under title fifth of this chapter, is situated within the county, and no other. § 6. The property basis of jurisdiction.— It may be well however to reiterate at this point what assets will justify the Surrogate in assuming jurisdiction to grant letters of adminis- tration. It will be noted, under the provision of section 2476 above quoted, that personal property is the usual basis of ad- ministration, except in the case covered by subdivision 4 where the decedent was a non-resident of the State and no petition for administration or probate has been filed in any Surrogate's Court ; but the real property of the decedent which is subject to disposition under title 5 of chapter 18 (that is to say, dis- position for the payment of debts and funeral expenses), is sit- uated within the Surrogate's county and no other. With this exception any personal property will suffice to give the Surro- gate jurisdiction ; even property exempt from execution. Mat- ter of Clarlc, 40 N. Y. St, Rep. 12. So where the asset which is asserted to be the basis of jurisdiction is a claim against an insurance company upon its policy upon the life of the decedent payable in the county of the Surrogate to the decedent's " exec- utors, administrators, or assigns," a Surrogate may assert juris- diction regardless of whether the policy is itself in the State or not. Matter of Miller, 5 Dem. 382, Rollins, Surr. In this case the Surrogate held that such a policy of insurance was not a debt " evidenced by a bond, promissory note, or other instru- ment for the payment of money only, in terms negotiable or in terms payable to bearer or holder," which class of debt is by section 2478 regarded for the purpose of conferring jurisdiction as personal property at the place where the bond, note or other instrument is. Of course the situs of the property regulates jurisdiction as to the administration of the estate. Isham v. Gih- hons, 1 Bradf. 69, 71. § 7. Lost, destroyed or revoked will — Full discussion has been elsewhere had as to what constitutes proper proof of the loss, destruction, or revocation of a will. Where a party, how- ever, petitions for letters of administration on the ground that the decedent left no last will or testament, and this fact is put in issue the Surrogate must determine the fact of intestacy judi- cially. The burden of proof that there was a will rests upon those opposing the grant of letters. Matter of Demrnert, 5 Redf. 299. So, where there was an application for letters of adminis- LETTERS OP ADMINISTRATION. 683 tration the petition in which alleged, that the decedent died with- out leaving a last will and testament, and it appeared that he- had in fact left a will which had previously however been denied probate by the Surrogate on the ground that its execution was obtained through undue influence, Surrogate Livingston held that if parties opposing the application for letters alleged that another will had been executed by the decedent which had been destroyed, they must prove that fact, in the pending proceeding, and while of course it was possible that the Avill might have been destroyed under circumstances not amounting to revoca- tion, that fact must be affirmatively established and that in the absence of such proof the letters must issue. Surrogate Brad- ford held in Isham v. Gibbons, 1 Bradf. 69, 71, the only mode of showing that decedent left a will is either by the production or original proof of a will before the Surrogate, or by evidence that a will has been duly proved before some other court of competent jurisdiction. In the latter event proof of probate may be directly opposed against the application for administra- tion. But if an unproved will is prodaced or shown to exist it is proper to stay the application for letters of administration pending the proceedings to prove the will before issuing letters of administration in chief. No prejudice to the persons inter- ested in the estate can be wrought thereby, because of provi- sions already discussed under which temporary administration can be had. § 8. Settlement without administration. — The object of administration being to distribute the estate among those en- titled thereto after payment of debts, it follows that where there are no creditors the heirs or next of kin may by private agree- ment settle the estate without taking out letters of administra- tion. Herrington v. Loioman, 23 App. Div. 266, citing Hyde V. Stone, 7 Wend. 35i, 357 ; Wormuth v. Hale, 17 Weekly Dig. 180. These family arrangements by which estates have been settled and divided, and property transferred by the next of kin without obtaining letters of administration, where the rights of creditors were not concerned, have been sustained {Herrington V. Lowman, supra), for the reason that, in the absence of cred- itors, an administrator would be a mere trustee for the next of kin, whose sole duty would be to collect, convert and distribute the estate among the beneficiaries according to their respective interests. Where the whole trust estate is legally and justly 684 SUEKOGATES' C0XTRT8. distributed and the purpose of the law thus accomplished there is no need of an adnainistrator. Ledyard v. Bull, 119 N. Y. 62, 72. So, also, adult heirs or next of kin may make a valid and enforceable settlement of the estate pursuant to terms of a paper of decedent's not provable as a will. Williams v. Whittell, 69 App. Div. 340. These settlements are subject to attack only by creditors or persons interested whose rights were ignored. Ibid. If there are infants, a settlement under which they receive what they would be entitled to receive had there been an administrator, will be sustained. Where, however, all the parties beneficially interested in the estate are of full age, any voluntary settlement and distribution among them which they may agree to, whether in accordance with the statute of distributions or not, in the absence of deceit or fraud, will be sustained. Ledya/rd v. Bull, supra. § 9. Who entitled to letters of administration.— The Code provides an explicit order of priority among those entitled to administer the estate of an intestate decedent as follows : Administration in case of intestacy must be granted to the relatives of the deceased entitled to succeed to his personal property, who will accept the same, in the following order : 1. To the surviving husband or wife. 2. To the children. 3. To the father. 4. To the mother. 5. To the brothers. 6. To the sisters. 7. To the grandchildren. 8. To any other next of kin entitled to share in the distri- bution of the estate. [See chap. 410, L. 1901, quoted at p. 1503, 2}ost.'\ 9 . To an executor or administrator of a sole legatee named in a wUl, whereby the whole estate is devised to such de- ceased sole legatee. If a person entitled is a minor, administration must be granted to his guardian, if competent, in preference to cred- itors or other persons. If no relative, or guardian of a minor relative, wiU accept the same, the letters must be granted to the creditors of the deceased ; the creditor first applying, if otherwise competent, to be entitled to preference. If no creditor applies, the letters must be granted to any other per- LETTERS OF ADMINISTEATION. 685 son or persons legally competent. (See Matter of Haug, 29 Misc. 36, making this applicable to § 2643, C. C. P.) Letters of administration shall also be granted to an executor or ad- ministrator of a deceased person named as sole legatee in a ■wUl. The public administrator in the city of New York has preference after the next of kin and after an executor or ad- ministrator of a sole legatee named in a wUl whereby the whole estate is devised to such deceased sole legatee over creditors and all other persons. In other counties, the county treasurer shall ha\e preference next after creditors over aU other persons. If several persons of the same degree of kindred to the intestate are entitled to administration, they must be preferred in the following order : First, men to women ; second, relatives of the whole blood to those of the half blood ; thu'd, unmarried woman to married. If there are several persons equally entitled to administration, the suiTOgate may grant letters to one or more such persons, and administration may be granted to one or more competent persons, although not entitled to the same, with the consent of the person entitled to be joined with such person or per- sons ; which consent must be in writing and filed in the office of the surrogate. If a surviving husband does not take out letters of administration on the estate of his de- ceased wife, he is presumed to have assets in his hands suffi- cient to satisfy her debts, and is liable therefor. A husband is liable as administrator for the debts of his wife only to the extent of the assets received by him. If he dies leaving any assets of his wife, unadministered, except as otherwise pro- vided by law, they pass to his executors or administrators as part of his personal property, but are liable for her debts in preference to the creditors of the husband. If, in an action, brought or about to be brought, the intestate, if living, would be a proper party thereto, any party to such action, interested in the subject thereof, may apply to the surrogate's court for the granting of letters of administration to himself, or some other quahfied person, and upon the jurisdictional facts being satisfactorily shown, and no relative, or guardian of a minor relative, and no creditor, county treasurer or public adminis- trator consenting to such administration, some legally com- petent person must be appointed administrator. § 3660, Code Civil Proc. § 10. Statutory priority must control — Since the statute 686 StJRROGATES' COUETS. fixes the order of priority, the Surrogate must grant letters to the applicant establishing his priority to the satisfaction of the Surrogate, unless any of the disabilities pointed out later on are shown to exist. If several claimants clearly belong to different classes speci- fied in the subdivisions of section 2660, the Surrogate's tasii is a simple one. He merely adjudicates that the petitioner being in such and such a class has priority over the others. But it is the duty of the Surrogate to actually find that the applicant does belong to the class alleged. For example : WIFE. Where the petitioner claims to be the widow of decedent, the Surrogate may, if the issue be raised, take proof of her ac- tual marriage to the decedent. Matter of Gerlach, 29 Misc. 90. But, it has been held that the fact that the marriage of the widow of intestate is voidable is no answer to her appli- cation for letters unless the marriage has been actually de- clared void by a court of competent jurisdiction. White v. Lowe, 1 Eedf. 376, and cases cited. The rule is stated to be, where the contract of marriage is void absolutely, the surviv- ing husband or wife is not entitled to administer, but where it is merely voidable and sentence of nullity has not been de- clared, the right to administer remains. 1 Williams on Ex- ecutors, 358. Where, however, it appears that the wife has been divorced, she is not entitled to administration, Estate of Ensign, 103 N. Y. 284, except where the divorce is one which is not valid under the laws of this State, in which case the wife so actually divorced is entitled to letters in preference to one who subse- quently to such divorce married the decedent. Matter of House, 20 Civ. Proc. Rep. 131. But if the wife secures a divorce she may not subsequently assert its invalidity in order to get let- ters. Matter of Swales, 60 App. Div. 599. HTTSBAND. The right of a husband in administration stands on a peculiar basis. At common law the husband was entitled to administer upon the estate of his deceased w4fe and to retain and own all assets left after the payment of her debts. Bobins v. McClure, 100 Y. Y. 328, 333. See also Ransom v. Nichols, 22 JST. Y. LETTERS OP ADMINISTBATION. 687 110. The development of the legislation on this subject is summarized in Matter of Thomas^ 33 Misc. 729, where Thomas, Surr., construing the effect of section 2660, citing Matter of Bolton, 159 N. Y. 129, 133; Robins v. McClure, supra; Matter of Nones, 27 Misc. 165 ; Matter of MoLeod, 32 Misc. 229, states, after discussing the provision of the statute, 1 E. S. m. p. 75, §§ 29-30, 2 R. S. m. p. 98, § 79, and Laws of 1867, chap. 782, § 11, " it will be observed that no change in the common-lav? rule in cases where a wife leaves no descendants her surviving is attempted and the opinion of the court in Robins v. McClure, is largely devoted to showing that the common-law rule in such cases remained, notwithstanding the amendment, in full vigor." And he points out that where married women leave descendants, their estates must be ad- ministered by administrators appointed as such. The present statutes covering the subject are sections 273J: and 2660 of the Code'. The former section is quoted at page \?>lZ,post. Section 2660 provides that, if a surviving husband does not take out letters of administration on the estate of his deceased wife, he is presumed to have assets in his hands sufficient to satisfy her debts and is liable therefor. If he takes out letters he is liable as such administrator for her debts only to the ex- tent of the assets received by him. '» The section further provides that if he dies leaving any assets of his wife's unad ministered, excepting as otherwise pro- vided by law, they pass to his executors or administrators as part of his personal property, but are liable for her debts in preference to the creditors of the husband. This provision dealing with the unadministered estate of the wife, contem- plates both the cases where he does and does not take out letters, for it provides that her estate passes to his representa- tives as part of his personal property to be administered by them, subject to the payment of her debts. Therefore, it has been held that where a wife leaving no issue, dies intestate, sur- vived by a husband and a brother, and the husband subsequently dies without administering the estate, letters issued to the brother without notice to the husband's personal representatives were void and would be vacated upon their application. Mat- ter of Thomas, supra. It will be noted that the personal repre- sentatives of the husband in such a case are not required to take out letters of administration on the wife's estate, but they have 688 StJEEOGATES' COtJETS. the right to reduce her estate to their possession as part of hi« personal property. CHILDREN. "Where one petitions as the child of the decedent, it is a material inquiry whether the petitioner properly falls within that class. Ferrie v. Puhlio Administrator, 3 Bradf. 151, 169. Thus an illegitimate child of a woman subsequently married to a man not its father is not legitimatized b}"^ such marriage, and is not one of that man's " children " nor entitled to administer under section 2660. Matter of Ffarr, 38 Misc. 223. Legit- imacy will be presumed in the absence of proof to the contrary, but if illegitimacy be proved it affects the right to administer. The statute entitling the illegitimate to share in the estate of the mother has been held not to affect the right of administra- tion, which in default of lawful kin belongs to the successive classes indicated in section 2660. Ferrie v. Public Adminis- trator, supra. Surrogate Bradford held {Public Administrator V. Hughes, 1 Bradf. 126), that where the intestate was an il- legitimate child, domiciled in England where she died unmar- ried, leaving assets in New York City, she could have no legal kindred except lineal descendants, for having no legal ancestors she could have no collateral relatives, and that consequently a son of her mother was not entitled to administration ; and he accordingly granted letters to the public administrator. FATHEE. It is hardly necessary to discuss all the headings of subdi- visions of section 2660, but it must be borne in mind in connec- tion with them all that the relationship to the intestate giving priority must be the relationship at the time of his death. For example, in Matter of Seymour, 33 Misc. 271, the intestate at his death left a widow and infant child and also a father, mother, brother and sister. The widow and child died subse- quently, the child first. Now it is clear at the death of the intestate the widow had the priority of right to administration and on the death of the child was entitled to the personal property of the decedent. The father, upon her death peti- tioned for letters on the estate of the intestate son and his ap- plication was denied. LETTEES OF ADMINISTKATIOK. 689 OP NEXT OF KIN ENTITLED TO SHAKE IN THE DISTEIBDTION OF THE ESTATE. This subdivision eight has given rise to considerable contro- versy. Originally the Revised Statutes provided that adminis- tration should be granted to any other next of kin who would he entitled to share in the distribution oO the estate, and in Lathrop V. Smith, 23 N. Y. 417, the father of an intestate re- nounced and letters were issued to a creditor without citing the brother and the issuance of letters was refused for the reason that on the renunciation of the father, the brother was next entitled to letters because he would have been entitled to share in the estate upon the death of the father. The court says: " The true construction of the statute would therefore seem to be that all persons who might he entitled to participate in the distribution of the estate being the relatives or those repre- senting the relatives of the decedent have the first right to administration in the order named in the statute." Section 2660 now reads, however, administration in case of intestacy " must be given to the relatives of the decedent entitled to succeed to his personal property" and, in subdivision 8, "to any other next of kin entitled to share in the distribution of the estate." It is claimed that this amendment changes the rule adopted in the Lathrop case. The General Terra in the Fourth Department in Matter of Wilson, 92 Hun, 318, 321, held that this was not so for the reason that after the decision in the Lathrop case, section 27 of the Ee vised Statutes was amended by section 3 of chapter 362, Laws, 1863, by adding the foUow- ing clause : " This clause shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the decedent as his next of kin at the time of his decease." In the Wilson case it was held that this amend- ment indicated the legislative intent to override the decision in the Lathrop case ; but it was again amended by section 6 of chapter 728 of Laws of 1867, leaving out the words added by the amendment of 1863, so the Wilson case holds that the re- peal of that amendment indicated the intent to leave the law as the Lathrop case put it. In Matter of Seymour, 33 Misc. 271, Silkman, Surr., de- clares this decision to have been ohiter and holds that the result of the successive amendments being to change the original 44 690 STJRKOGATES' COUKTS. words " would be entitled to share " to the words, " entitled to share " is sufficient indication of the intention of the legislature to finally change the rule adopted in the Lathrop case and ac- cordingly he denied letters to the father of the intestate, who when he died left a widow and child, both of them dying after the decedent, on the ground that the personal property would pass entirely to the widow and must go to her legal representa- tives. In Matter of Lowenstein, 29 Misc. 722, Varnum, Surr., held under a different set of facts, where the public ad- ministrator petitioned for the appointment, that in spite of the amendment of the Code, the rule laid down in Lathrop v. Smith and in Matter of Wilson is still effective as an authority upon this question and that, therefore, the uncles and aunts and other relatives of the intestate, although not entitled to share in the intestate's estate were persons who under sub- division 8 had a right to letters superior to that of the public administrator citing, § 2663 of the Code,- Butler v. Perrott, 1 Dem. 9. In this last case, Rollins, Surr., held that a personal right to participate in the distribution of the personal property of an intestate is not an essential qualification of one applying as a relative for letters of administration on his estate and held explicitly that the right to such letters ot any person of the hloud of the intestate, not disqualified, is superior to that of the public administrator. This case, however, was decided in 1882, and went on the theory that where the legislature re-enacts a provision which has been construed by the courts, the statute so re-enacted is to be deemed an adoption by the legislature of such construction ; therefore, it would seem that, if the legisla- ture deemed it necessary after the decision of the Lathrop case, to re-enact in 1867 the law interpreted by the Court of Appeals eliminating the amendment of 1863, then this subsequent amendment of the statute in the form now obtaining in sec- tion 2660 is equally significant, and that the decision of the Surrogate of Westchester county in the Seymour case states the correct rule. In Matter of Gilchrist, 37 Misc. 543, in Kings County, the Surrogate held that the public administrator in that county had under the express provision of section 2669 priority over next of kin who were not " entitled to a distrib- utive share of the estate of such intestate." The fact that this explicit provision as to the public administrator in Kings County, which was enacted in 1893 gives that officer priority LETTERS OP ADMINISTKATION. 691 over next of kin " not entitled to a distributive share of the es- tate," is significant of the intention of the legislature, in framing a harmonious and consistent scheme, that the next of kin in other counties should have a right based solely upon their being entitled to share in the estate, and that the sections covering other counties should be read in the light of such expressions. It must be observed in this connection that the Wilson case is authority for the proposition that where the next of kin would have been entitled to letters, the fact of a release of interest by renunciation or otherwise does not take away their right to letters as against the public administrator. In Matter of Haug, 29 Misc. 36, the case involved letters of ad- ministration c. t. a. Section 2643 of the Code provides in sub- division 3, "That lacking those priorily entitled, letters should issue to one or more of the next of kin, if competent." Fitz- gerald, Surr., construing this subdivision, held that where the brother of a testator died then the son of the brother is not of the next of kin of the decedent because he is not entitled to share, " in his own right in the unbequeathed residue of the estate," and, therefore, the executor of a sole legatee had a prior right under section 2660 to letters. He based his de- cision on subdivision 12 of section 2514, which reads, " The term next of kin includes all those entitled, under the provi- sion of law relating to the distribution of personal property, to share in the unbequeathed residue of the estate, of a de- cedent after payment of debts and expenses, other than the surviving husband or wife." He held, accordingly, that sec- tion 2660 was applicable to administration with the will an- nexed, citing Matter of Moehring, 24 Misc. 418, and that he was not one of the next of kin within the meaning of sec- tion 2643. Taking these various sections together and in connection with the definition contained in section 2514, the reasonable rule appears to be, that while the general intent of the statute is to give persons interested in the estate by relationship prior right of administration in the order of their interests as de- fined by the statute, yet that its special intent is that where a person, although related to decedent, is not interested in the property, he is to be treated as against the persons specified in the Code as much a stranger as are strangers to the blood. 692 SXTEBOGATBS' COUETS. OF MINORS. Section 2660 provides that if the person entitled is a minor, administration must be granted to his guardian, if competent, in preference to creditors or other persons. This provision is general and relates to all the classes in the section. In Matter of Hudson, 37 Misc. 539, the public administrator claimed the right to administer as against a . minor on the ground that section 2669 gave him prior right where there were no next of kin entitled to a distributive share .... com- fetent to take out letters. Section 2660, however, cures such incompetency by providing that where such special disability of minority exists, letters must be granted to the guardian. 10(Z. Priority among persons in same class. — As between various persons belonging to the same class or degree of priority under section 2660, the Surrogate may select except as noted below in his discretion such a one of that class as may seem best qualified to administer the estate. But under section 2660 if several persons of the same degree of kindred to the intestate are entitled to administration they must be preferred in the following order: First, man to woman ; Second, relatives of the whole blood to those of the half blood ; Third, unmarried women to married. So a Surrogate in pursuance of the statute will prefer, a son though a non-resident to a daughter who is a resident. Lussen V. Timmerman, 4 Dem. 250, Rollins, Surr. ; Matter of Drowne, 1 Connoly, 163. Prior to the Code it was held that male relatives of the intestate under the age of twenty-one years had no prior right to administer through their guardians over female relatives of the same degree of kinship who were of age. Wick- wire V. Chapman, 15 Barb. 302. But, in that case, the minor male relatives were non-residents and the adult female relatives were residents. In another case it was held that the adult married daughter should be entitled to administer in preference to her brother who was a minor, through his guardian. Cvtile V. Van Hayden, 56 Barb. 622. It has been held that the pro- visions in that part of section 2660 following subdivision 9 are not intended to modify the priority established by the first nine subdivisions and are intended to apply to cases not covered by those subdivisions. Thus, where an intestate left him surviv- LETTERS OP ADMINISTEATION. 693 ing a sister and a brother, and the sister was of the whole blood, while the brother was of the half blood, Surrogate Fitzgerald held that, the priority of brother over sister fixed by subdivi- sions 5 and 6, was superior to the priority of relatives of the "whole blood to those of the half blood defined in subsequent provisions of section 2660, and granted letters to the half brother of the intestate. Estate of Moran, 5 Misc. 176. This decision is based upon the theory that the provisions of sec- tion 2660 preferring among persons of the same degree of kin- dred of the intestate, man to woman, relati ves of the whole blood to those of the half blood, and unmarried women to mar- ried women are so stated in the order of their importance. That is to say that while relatives of the half blood, by which is meant those having but one parent in common (Bouvier's Law Dictionary), are deemed to be of the same degree of kin- dred to the intestate as relatives of the whole blood, and are ordinarily to be postponed to the relatives of the whole blood, yet if, of such relatives, some are males and some are females, the former will be preferred. Consequently, in view of this decision, the only case in which relatives of the whole blood will be preferred to those of the half blood is a case where the intestate dies leaving him surviving, none of the individuals mentioned in the first four subdivisions of section 2660; or none competent to act ; but leaves several sisters only, or several brothers only, one or more of whom may be of the half blood, but where he leaves both brothers and sisters tbe first rule of priority, i. e., of male to female takes precedence of the second rule of priority as to relatives of the whole to those of the half blood. Similarly it would also follow that, where all the persons belonging to a given class are women, as is possible under subdivisions 2, 6, 7 and 8, unmarried women must be preferred to married women. Matter of Ctir- ser, 89 N. Y. 401. And the fact that, of two women equally related to the intestate, the unmarried one is under twenty- one and the other is over twenty -one, will not affect the priority of the unmarried woman, as there is a provision to the effect that if a person is a minor, administration must be granted to the guardian, if competent. The provision as to priority of men to women and unmarried to married women does not relate to creditors, as in regard to them section 2660 contains an express provision that as between creditors, the creditor 694 STTEKOGATES' COURTS. .first applying, if otherwise competent, is entitled to preference. "Where members of the same class are of different degrees of kindred, the nearest will be preferred, regardless of sex. Thus a niece will be "preferred to a grandnephew. Matter of Haw- ley, ZIMkc. 667. § 105. Renunciation. — A person entitled to administration may renounce this right either generally or in favor of a specific applicant. When renounced in favor of a particular applicant who subsequently dies, the Surrogate has full power to permit a retraction of the renunciation and grant letters to the applicant as against some other claimant not priorily entitled. Matter of Ilaug, 29 Misc. 36. The formahties of a renunciation are similar to those in the case of renouncing the right to letters testamentary. Section 2639 at page 590 et seq., supra, q. v. and cases discussed. The language of the statute in directing letters to issue to persons "competent who will accept" contemplates that their refusal or any unwillingness to accept shall be evidenced by a formal declaration to that effect ; for section 2663 provides : " Any person who has a right to administration prior or equal to that of the petitioner, may renounce his right by a written instrument acknowledged or proved and certified in like man- ner as a deed to be recorded in the county or otherwise proved to the satisfaction, of the Surrogate, which must be filed in the Surrogate's office." A mere agreement by a wife with her husband to accept a sum of money in satisfaction of her right of dower and of her distributive share in his estate, but silent upon the right to administer upon his estate is not a renunciation under section 2663. Matter of Wilson, 92 Hun, 318. The renunciation of the right to administer must relate to administration in the State of New York. Sulz v. Mutual Reserve, T Misc. 593, affirmed upon opinion of Graynor, J., 83 Hun, 139. If the renunciation above referred to is a gen- eral one, nevertheless, it must be retracted by leave of the Sur- rogate, under the same reasoning applicable under section 2639 already discussed. It provides in that section that such re- nunciation may be retracted " at any time before the letters testamentary or of administration with the will annexed have been issued to any other person in his place." See Matter of Suarez, 3 Dera. 161, 167 ; Coddiny v. Newman, 63 IST. Y. 639 ; Casey v. Ga/rdner, 4 Bradf. 13. LETTEES OF ADMIKISTRATION. 695 § 11. Exercise of discretion by Surrogates A Surrogate has no discretion to exclude a person " entitled " to letters ex- cept for a statutory cause. Coope v. Lowerre, 1 Barb. Ch. 45 ; Harrison v. McMahan, 1 Bradf. 283 ; Matter of Cutting, 5 Dem. 456 ; Coggshall v. Green, 9 Hun, 471 ; McMahan v. Har- rison, 6 N. Y. 443 ; Emerson v. Bowers, 14 N. Y. 449 ; O'Brien V. Neiibert, 3 Dem. 156 ; Blanch v. Morrison, 4 Dem. 297 ; McGregor v. McGregor, 1 Keyes, 133 ; HoAjward v. Place, 4 Dem. 487. Section 2661 defines what shall be deemed incompetency to take letters. It is as follows : Letters of administration shall not be granted to a person convicted of an infamous crime, nor to any one incapable by law of making a contract, nor to a person not a citizen of the United States, unless he is a resident of the State, nor to a person under twenty-one years of age, or who is adjudged incompetent by the Surrogate to execute the duties of sutih trust by reason of drunkenness, improvidence or want of un- derstanding. § 3661, Code Civil Proc. "While the Surrogate has no discretion to exclude a person entitled to a preference for any but a statutory cause {Coope v. Lowerre, 1 Barb. Ch. 45 ; Harrison v. McMahan, 1 Bradf. 283 ; Matter of Cutting, 5 Dera. 456, Rollins, Surr., citing Coggshall V. Green, 9 Hun, 471 ; McMahan v. Harrison, 6 N. Y. 448), yet it is further provided by section 2612 that a Surrogate in his discretion ma}'' refuse to grant letters testamentary or of administration to a person unable to read or write the English language. So in Matter of Haley, 21 Misc. 777, Marcus, Surr., excluded from administration a widow unable to read or write our language or to count monej^ and granted letters to a son of the testator by a former marriage. The Surrogate observes, at page 779 : " While it is true no new disqualification can be added to those specified in the statute, yet any person applying for letters, deficient in capacity to manage or ability to perform duties necessarily incumbent upon them, lacking the requisite understanding to be directed intelligently .... when a person is so evidently unsuitable, unable to read or write, it seems a reasonable exercise of discretion to refuse the granting of letters." What constitutes drunkenness, improvidence or want of un- 696 StTEEOGATES* COURTS. derstanding is a matter for the court to determine upon the facts presented. The denial of letters to one convicted of an infamous crime requires proof of actual conviction after trial. So Chancellor Walworth held that no degree of legal or moral guilt or delinquency is sufficient to exclude a person from ad- ministration as the next of kin in the cases of preference given by the statute, unless such person has been actually convicted of an infamous crime. And he added (Coope v. Lowerre, 1 Barb. Ch. 45, 47), the improvidence which the fraraers of the Revised Statutes had in contemplation as a ground of exclu sion, is that want of care or foresight in the management of property which would be likely to render the estate and effects of the intestate unsafe and liable to be lost or diminished in value by improvidence in case administration thereof should be committed to such improvident person. Surrogate Ransom {Matter of Selling, 2 N. Y. Supp. 634) refused letters of admin- istij-ation to a son of an intestate who was a resident of the State Und gave them to a non-resident married daughter of the intestate on the ground that the son was a professional gam bier known as " Poker Joe," and had no employment or vocation except gambling, and lived on the money he won ; it appeared, however, in addition that he had been arrested in another State for embezzlement, that he had been guilty of forgery, and had kept an assignation house, so that exclusive of his character as a professional gambler there were grounds for ex- cluding him from administration. It has been also held in strict interpretation of the statute that vicious conduct, im- proper and dishonest acquisition of property, and even loose habits of business did not constitute improvidence within the meaning of the statute. Coggshall v. Green, 9 Hun, 471, cit- ing Emerson v. Bowers, 14 E". Y. 449 ; McMahan v. Harrison, 10 Barb. 659. And the General Term adopted the language of the chancellor in Coope v. Lowerre, supra, that the fact that a man seeks to obtain the property of others by theft or fraud is not evidence of " improvidence." § 12. Same subject. — In Harrison v. McMahan, 1 Bradf, 283, Surrogate Bradford granted letters to one accused of be- ing a professional gambler, holding that gambling ^er se was not evidence of improvidence. He remarks, " The man who habitually loses sums disproportionate to his means is mani- festly improvident ; but when he upon the whole gains he can LETTERS OP ADMINISTEATIOK. 697 hardly be termed improvident though leading an idle and vi- cious life." But the Court of Appeals {MoMahan v. Harrison, 6 N. Y. 443) laid down the true doctrine as to the effect of proof of an applicant for letters of administration being a pro- fessional gambler ; in affirming the decision of the Supreme Court (10 Barb. 659), reversing the decision of Surrogate Brad- ford above quoted. 1 Bradf. 283. It passed directly upon the question, whether the fact that a man is a professional gambler is presumptive evidence of such improvidence as unfits him for the office of administrator or executor, and laid down the fol- lowing very sound rule : " We coincide entirely in the views expressed by the chancellor, in Coope v. Lowerre, 1 Barb. Ch. 45, that this statute does not at all look at moral delinquency, but regards merely the likelihood of the estate and effects of the intestate being lost or squandered by an improvident person. But, so regarding the statute, we should obstinately close our eyes against the light of experience, if we fail to recognize the truth, that the pursuit of gambling is, in a pecuniary sense, the most hazardous of all pursuits. That it naturally engenders habits of recklessness and extravagance ; that, whether, for the time, successful or unsuccessful, it has but one common issue, and that, utter ruin. We think, therefore, that the fact of a man being a gambler, \& prima facie evidence of such improv- idence as rendered him incompetent to be an administrator ; and that the facts shown in this case, relating to the appellant's success in that pursuit, are not sufficient to rebut the presump- tion of incompetence." The rule now warrants any Surrogate in excluding from administration one who it is conclusively shown may properly be termed a professional gambler. Ha- bitual drunkenness, of course, in the legal sense of the term, should disqualify (Matter of Reiohert, 34 Misc. 288, citing J!fa^- ter of Cutting, 5 Dem. 456 ; MoMahan v. Harrison, 6 N. Y. 448 ; Emerson v. Bowers, 14 N. Y. 445 ; Matter ofManley, 12 Misc. 472), although it seems that habits of intemperance short of habitual drunkenness will not. See Elmer v. Kechele, 1 Eedf. 472 ; Matter of Kechele, 1 Tucker, 52. See generally as to im- providence, Matter of Cutting, 5 Dem. 456 ; Shillon's Estate, 1 Tucker, 93 ; Freeman v. Kellogg, 4 Eedf. 218 ; Martin v. Dulce, 5 Eedf. 597 ; Hovey v. McClain, 1 Dem. 396 ; Ballard v. Charlesworth, 1 Dem. 501. Eccentricities of character, violent temper, lack of self-control, will not disqualify {McGregor v. Mo- 698 StTEEOGATES' COURTS. Gregor, 1 Keyes, 133), nor old age or feeble health {Matter of Bernen, 3 Dem. 263), unless they are of a character to amount to total disabilitj'', or to constitute " want of understanding ; " nor is the fact that a person is indebted to the estate any ground of exclusion. Matter of Morgan, 2 How. Pr. N. S. 194 ; Church- ill V. Prescott, 2 Bradf. 304. Although it is probable that the fact that a person had failed in his business because of shiftless and improper business methods, had been declared a bankrupt, and was hopelessly involved in debt, might be deemed strong evidence of the improvidence contemplated by statute. § 13. Infamous crime. — The words "infamous.crime" are defined by statute (-1 R. S. chapter 1, title 7, § 31) as fol- lows : " Whenever the term infamous crime is used in any statute, it shall be construed as including every offence punish- able with death or by imprisonment in a state prison and no other." Consequent^ Surrogate Rollins (CP Brien v. Neubert, 3 Dem. 156) held, where the grandson of intestate objected to the issuance of letters to the son of the decedent on the ground that he had been convicted in New Jersey of the crime of lar- ceny, that the statute did not cover such a case and limited "incapable because of conviction of crime," to conviction under and by virtue of the laws of the State of New York and relied upon the decision of the Court of Appeals in Sims v. Sims, 75 N. Y. 466 ; National Trust Co. v. Gleason, 77 N. Y. 400. § 14. Non-residents. — It has been intimated that non-res- idence merely will not render an applicant for letters of ad- ministration incompetent under the statute. Matter of Wil- liams, 11 N. Y. 680, affirming 5 Dera. 292 ; Estate of Selling, 11 JSr. Y. St. Rep. 833. Section 2661 provides that letters of administration should not be granted to a person not a citizen of the United States, unless he is a resident of the State. Ttiis provision of the statute cannot be gotten around by the device of a power of attorney of such non-resident alien to a resident of the State. The non-resident alien being prohibited expressly by the statute to obtain letters of administration in person cannot authorize an\' one to do for him what he is so pre- cluded from doing in person.. Sutton v. Public Administrator, 4 Dem. 33. § 14a. Foreign consul's right to administer. — There are conflicting decisions as to the right of a consul of another nation to administer upon the estate of his fellow subjects LETTERS OP ADMINISTRATION. 699 deceased within his consulate. In Matter of .Fattosini, 33 Misc. 18, the consul general of Italy claimed a priority of right to administer upon the estate of a decedent. The next of kin were all in Italy. It had been previously held by the same Surrogate, Silkman, Matter of Tartaglio, 12 Misc. 245, that such consul general had, where the next of kin were all abroad, the right to receive their distributive shares and that his re- ceipt would discharge the county treasurer with whom they had been deposited under a decree of the court, and in that case the court cited The Bello Corrunes, 6 "Wheat. 168, where the Supreme Court declared it to have been the long and universal usage of the courts of the United States, to permit consuls, including vice-consuls duly recognized, to assert or defend the rights of property of individuals of their nation in any court having jurisdiction of the case, and it also laid down the proposition " Foreign consuls have authority and power to administer on the estate of their fellow subjects deceased within their territorial consulate," citing, AVheat. Int. L. 2d Eng. ed. 151 ; Woolsey Int. L. § 96. Accordingly in the Fat- tosini case and construing the treaty between the United States and Italy, the Surrogate held that such treaty gave the consul general specifically the power claimed, holding that treaty provisions were to be construed with greater liberality than legislative enactments in that by reason of the difference in language nice distinctions must be avoided. The treaty with Italy contains a " most favored nation " clause under which the Surrogate gave to the consul general of Italy the same powers and rights conferred upon the consul general of the Argentine Eepublio by article 9 of the treaty of July 27, 1853 with said Eepublic, which provision was as follows : " Article 9. If any citizen of the two contracting parties shall die without will or testament in any of the territories of the other, the consul general or consul of the nation to which the deceased belonged, or the representative of such consul general or consul in his absence, shall have the right to inter- vene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, /br^/^e benefit of the creditors and legal heirs." It appearing in this case that there were no creditors resident in the State of New York, letters of administration issued without requiring any security. 700 SUEBOaATES' COtJKTS. In a later case, Matter of Zogiorato, 34 Misc. 31, Thomas, Surr., considering the Fattosini case, refused to follow the principle laid down therein. In this case the decedent died intestate being a citizen and subject of the Kingdom of Italy and all of his next of kin being there resident ; there appeared to be no creditors, the public administratorj although cited, made no appearance and the consul general asserted a right to administer without security and in preference to the public ad- ministrator on the strength of the treaty provisions reviewed in the Fattosini case. Surrogate Thomas, considering the same provision of the treaty with the Argentine Eepublic, construed somewhat strictly the clause, " shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country " and he held that intervention conformably with the laws of New York gave no right of priority to the consul general, as against the express language of our statute, to ad- minister the estate, but merely to come in and protect the rights of citizens in bis territorial jurisdiction. There being, however, in this case, no relatives or guardian of any relative and no creditor or public administrator consenting to serve, he granted letters to the consul general merely on the ground that he was a legally' competent person, but requii-ed him to give the usual bond. As between these two decisions, both of which resulted in the granting of letters to the consul and neither of which was appealed, it is sufficient to say that it may prove significant hereafter on any subsequent inquiry of the same character, to bear in mind that the United States itself gives by its Revised Statutes almost plenary powers to its own consuls abroad in respect to reducing to possession and safeguarding the assets of intestate Americans dying within their territorial jurisdiction. The rights it gives to its own consuls and the duties it lays upon them cannot reasonably be denied to foreign consuls here to whom may be given by treaty, directly or by implication, as from a " most favored nation" clause, a right to " intervene in the possession, administration and judicial liquidat/lon of the estate." The words passed upon by both Surrogates above, " for the benefit of the creditors and legal heirs," could hardly be given any meaning if the intervention is to be limited as suggested in the Loyiorato case. An administrator in possession LETTERS OF ADMINISTKATION. 701 of the assets 2>r'otects creditors as well as legal heirs. It seems clear that the words " legal heirs " as used m the treaty is intended to include the next oL' kin and it seems equally clear that the words "conformably with the laws of the country," merely require that the consul given this right as to " che possession, administration and judicial liquidation of the estate" must submit to the supervision and control of an appropriate court having jurisdiction in the premises. This view makes it 'Hot unreasonable that the Surrogate in a proper case may require security to be given by the consul as against resident creditors. As against the persons interested in the estate, resident in the country by which the consul is accredited, they are deemed ampl^'^ protected as against him. And it may be ■conceded that nothing contained in the most explicit treaty provisions would divest the Surrogate's Court of this right to protect resident creditors having claims upon the estate of a foreigner leaving assets here which ought to be made to respond for his debts; but where there are no next of kin it hardly seems that either justice or good faith would permit the public administrator to receive letters as against the consul general asserting the right under treaty. It may be further observed that the word, " intervention " as used in the treaty quoted would have in both the French and Spanish language a far wider interpretation than that granted it in the Logiorato case. § 15. Practice in applying for letters. — The practice upon the application for letters is covered by sections 2662 and 2iJ63 of the Code of Civil Proc. Section 2662, provides that, A person entitled absolutely or contingently, to administra- tion of the estate of an intestate, may present to the surrogate's court having jurisdiction a written petition, duly verified, praying for a decree awarding letters of administration, either to him, or to such other person or persons, having a prior right, as is entitled thereto, or in the alternative, as the peti- tioner elects ; and if necessary, that the persons required to be cited, as prescribed in the next section, be cited to show cause why such a decree should not be made. The petition must set forth the petitioner's title ; the facts on which the jiudsdiction of the court to grant letters of administration upon the estate depends ; and the names of the husband or wife, if any, and of the next of kin of the decedent, so far as 702 STJEEOGATES' COURTS. they are known to the petitioner, or can be ascertained by him with due diligence. A citation shall not be issued, and a decree shall not be made, where a citation is not necessary, until the petitioner presumptively proves, by affidavit or otherwise, to the satisfaction of the surrogate, the existence of all the jurisdictional facts, and particularly that the dece- dent left no wfll. For the purpose of the inquiry touching any of these matters, the surrogate may issue a subpoana, requiring any person to attend and be examined as a witness. § 2663, Code Civil Proc. § 16. Who may make the application.— The Code as just quoted provides that the petition for letters of administration may be presented by " any person entitled absolutely or con- tingently to the administration of the estate of the intestate."- This entitles any one to whom in a proper case, letters would issue in the absence of persons priorily entitled under section 2660, to petition for the issuance of letters. The petition may pray that letters issue to the petitioner ; or it may pray they may be issued to such person or persons as may be shown to have a prior right; or it may contain a prayer in the alter- native ; but a petition is not defective in not containing a prayer in the alternative, or a prayer for the issuance of letters to those having a prior right to the petitioner ; for the provi- sions of section 2660 are mandatory, and before letters are is- sued the Surrogate is bound to ascertain all the facts, which necessarily includes ascertaining who are the surviving kindred entitled to administration, and, whoever may be the petitioner, letters must issue in the statutory order of priority to such person or persons entitled thereto, " who will accept the same." See section 2660. Unless a written renunciation is filed, every person who is a resident of the State, and has a prior right to administration, must be cited. See Matter of Loewenstein, 29 Misc. 722. And if a Surrogate should issue letters to a petitioner, where resi- dent persons entitled to prior right had not renounced or been cited, the issuance of letters to the petitioner is invalid, and will be revoked upon application of such parties priorily en- titled. Barler v. Converse, 1 Redf. 330, 333. § 17. Contents of the petition — The petition for letters of administration must state the following facts : The name of the petitioner, his relation, whether of kindred, or as a creditor, or LETTERS OF ADMINISTEATION. 703 in some official capacity to the decedent, or his estate, that the decedent is dead, giving the place and time of such death, that the decedent died intestate, that petitioner has made diligent search and inquiry for a will without finding any, or without obtaining any information that he ever left or made one. The petition should then state that the decedent died possessed of certain personal property within the State giving the value of such property, or if there is no such property within the State, but a right of action which the administrator of the decedent would have by special provision of law, there should be stated the probable amount recoverable upon such right of action. The petition should also contain the name of the surviving hus- band or wife, if any, and the names of the next of kin surviv- ing the intestate, stating their relationship to the decedent, and it is the better practice to state these names in the order of priority under section 2660. There should also be an addi- tional allegation, which may be made on information and belief, that the Surrogate to whom the petition is presented has exclu- sive jurisdiction to grant letters of administration. Unless it is made to appear that the decedent left no property in other counties of the State it is well to add an allegation that no peti- tion for grant of letters has been filed in any other Surrogate's Court of the State. The prayer of the petition is for a decree awarding letters of administration upon the goods, chattels and credits of the intestate to the petitioner or some specified per- son or persons, and prays for the issuance of a citation to all parties, having a prior or equal right with the petitioner, to show cause why the decree should not be made as prayed for. (See, as to sufficiency of petition, Matter of Cameron, 47 App. Div. 120.) The following precedent for a petition may be fol- lowed : Surrogate's Court, Erie County, New York. Petition for In the Matter of Awarding Letters of Ad- Letters of Administration 1 ministration. upon the Estate of I Deceased. To the Surrogate's Court of the said County of Erie : The petition of residing in the in the said County of Erie, respectfully shows : Your petitioner allege that late of 704 STTEEOGATES' COtTRTS. Note. State names if possible in order of prior- ity of riglit to ad- minister under § 2tJ60. the of in the said County of Erie, died in said of on or about the day of 189 and the said decedent was at the time of his decease a resident of said County of Eiie. Your petitioner further allege that lia made diligent search and inquiry for a will and testament of said decedent, and ha not found any or obtained any information that said dece- dent left any, and that to the best of j'our peti- tioner's knowledge, information or belief, the said decedent died without leaving a wUl. Your petitioner further allege that the fol- lowing named persons {note) as far as they are known to or can be ascertained by yonr petitioner with due diligence, are the only heirs and next of kin, and of the said decedent, h surviv- ing, and their relationship, ages and places of residence, are as follows : Name. Kelationship. Age Residence. That no right of action exists, granted to the administrator of the estate of said decedent by special provisions of law (o?- if such right of action exists specify it and state the probable amount recoverable thereon. This ?nust be done if it constitute the only asset to be administered). That the value of all the personal property, wherever situated, of which the decedent died possessed, does not exceed dollars. The said decedent died seized of real es- tate situated within the State of New York, and that the estimated value thereof does not exceed dollars. That your petitioner is of full age, and that he is informed and believes that the Surrogate of said County ha8 tEfe sole and exclusive power LETTERS OF ADMINISTRATION. 706 to grantxLettei's of Administration of the goods, chattels and credits of said intestate ; he therefore prays that such letters on the es- tate of said decedent may be granted to h (jointly with residing in the town of in said County) , (or to some specified person or persons having a prior right to that of the peti- tioner, whose relationship to the decedent must be alleged) and that such persons, having a right to such letters prior or equal to that of your petitioner as this Court may direct, be cited to show cause why such a decree should not be made, and that all such process and pro- ceedings may be had and taken in this proceed- ing to the end that Letters of Administration be granted upon the estate of said decedent as the law may require. Dated at this day of 189 Petitioner to sign here. Note. Where joint administra- tion is prayed add consent as fol- lows: I, named in the within petition, hereby consent that administra- tion upon the goods, chattels 45 State of New York, Erie County, )■ ss. City of Buffalo. being duly sworn, depose and say that he ha heard read the foregoing petition by subscribed, and know the contents thereof, and that the same is true to the knowledge of deponent except as to matters therein stated to be alleged on information and belief, and that as to those matters be- lieve it to be true. Note. Subscribed and sworn to before me, this day of 189 Petitioner to sign here. Officer administering oath to sign here. Oath. State of New York, ^ Erie County, > ss. City of Buffalo. ) I, do swear that I am a citizen of the 706 and credits of deceased, be granted to me jointly witli as asked for in said petition. Dated 189 SUEEOGATES' COURTS. United States, and a resident of the of . in said County of Erie, and over twenty- one years of age, and that I will well, faithfully and honestly discharge t^e duties of adminis- trat of the estate of late of the of in said County, deceased. Subscribed and sworn "^ to before me, this }■ day of 189 I Administrator to sign here. • *•................ >•.•........■... Officer administering oath to sign here. Address. Citation for Administration. The People of the State of New Yokk, To You and each of you are hereby cited to be and appear before the Surrogate of the County of Erie, at the Surrogate's Office, in the city of Buffalo, in the county of Erie, State of New York, on the day of 189 at o'clock in the noon of that day, then and there to show cause why a decree should not be made awarding Letters of Administration of the estate of late of the of in said county of Erie, deceased, to or to such other person or persons having a prior right as may be enti- tled thereto. {...} In Testimony Whereof, We have caused the Seal of our Surro- gate's Court for the County of Erie, to be hereunto affixed. Witness, Hon. LOUIS W. MARCUS, Surrogate of our said County of Erie, at Buf- falo, N. Y., this day of 189 Olerk of the Surrogate's Court. IiETTBRS OF ADMINISTRATION. 707 Decree award- ing letters of ad- ministration. Note. Or the reference to the bond may be omit- ted and a provision put in at the close* " and upon exe- cuting to the Peo- ple of the State of New York a joint and several bond of himself and (2) good and sufiScient sureties in the penalty hereby iixed at $ con- ditioned as pre- scribed by law, to be duly approved by the Surrogate, and filed with the clerk of this court." At a Surrogate's Court, held in and for the County otWest- chester, at the Surrogate's Office, in the Town of White Plains, on the day of in the year one thousand eight hundred and ninety Present : Theodore H. Silkman, Surrogate. In the Matter of the Admin-"! istration of the Goods, Chattels and Credits of Deceased. On reading and filing the duly verified petition of the of late of the of in said County, deceased, intestate, praying that the Letters of Administration of the goods, chattels and credits of the said deceased be granted to and the petitioner having proved to the satisfaction of the Surrogate, that the said deceased was at the time of h death a resident of the said County of Erie, and left no will, and on reading and filing the bond (note) executed by the said petitioner and two competent sureties, pursuant to the statute, and this Court being satisfied that the said petitioner in all respects competent to act as the Administrat of the goods, chat- tels and credits of the said deceased ; Ordered and Decreed, that the prayer of the said petitioner be granted, and that he be and hereby is appointed administrator of the estate of deceased, and that Letters of Adminis- tration issue to the said petitioner accordingly, upon filing the oath or affirmation of office required by law.* (See note supra.) Surrogate. § 18. Who must and who may be cited.— Section 2663 de- 708 surrogates' courts. fines who are necessary, and who ssq proper persons to be joined as parties upon an application for letters of administration. The section or so much of it as relates to this point is as fol- • lows : Every person, being a resident of the state; who has a right to administration, prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discre- tion, issue a citation to non-residents, or those who have re- nounced, or to any or all other persons interested iu the estate, whom he thinks proper to cite. Where it is not necessary to cite any person, a decree, granting to the petitioner letters, may be made on presentation of the petition. Where the surrogate is unable to ascertain, to his satisfaction, whether the decedent left, surviving him, any person entitled to suc- ceed to his estate, a citation must be issued, directed gener- ally to all creditors of, and persons interested in the estate, and also to the attorney-general, and the public administrator of the proper county, requiring them to show cause why ad- ministration should not be granted to the petitioner. . . . Where a citation is issued, any creditor of the decedent, or any person interested in the personal estate, altliough not cited, may appear and make himself a party to the special proceedings, in like manner and with like effect, as a devisee or legatee, who is not cited on an application for probate. On the return of a citation, issued as prescribed in this ar- ticle, the surrogate must make such a decree in the premises as justice requires. The decree may award administration to any party to the special proceeding who appears to be en- titled thereto. The surrogate, in his discretion, may award administration without a personal examination of tiie person to whom it is awarded. §^663, Code Civil Proc. in part. § 19. Necessary and proper parties.— The provisions of section 2662 which require the names of the husband or wife, if any, and of the next of kin of the decedent, so far as they are known to the petitioner, or can be ascertained by him with due diligence, to be set forth in the petition are mandatory in the sense that if the names of necessary parties, as for ex- ample the widow, are omitted from the petition and no cita- LETTERS OF ADMINISTRATION. 709 tion issues or is served pursuant to section 2663, a decree grant- ing letters to any person subsequently entitled would be in- valid and could be revoked or vacated in a direct proceeding for the purpose. So, where a wife died, without issue, lea\ang a husband and brother, and later the husband died, his personal representatives under section 2660 have prior claim to ad- minister over brother, and if letters issue to brother without citing them, the letters will be vacated. Matter of Thomas, 33 Misc. 729. They would not, however, be void and could not therefore be collaterally attacked. Kelly v. West, 80 N. Y. 139, opinion of Earl, J., at page 145, cited in Power v. Speckman, 126 N. Y. 351:, 357. See also Power v. Bunnester, 12 N. Y. Supp. 25. So, where one of the facts stated in the petition for administration is untrue, as, for example, a false allegation by the petitioner that he is the surviving husband of the intestate, the order granting the letters does not fall, is not revoked, or is not even shaken in the authority given by it to the appointee to administer, by proof in other pro- ceedings that the allegation is false. But the next of kin who were not cited in the proceeding can always attack the order directly, for the order is not conclusive upon the reasons and facts not jurisdictional which led to it, as against parties not cited, not appearing, and who have in no manner been heard in respect to them. Matter of Patterson, 116 N. Y. 327, opinion of Finch, J., at page 331, and cases cited. This de- cision, however, does not affect the fact that the surviving husband or wife, if any, is always a necessary party, and, if not in fact the petitioner in the proceedings, must be cited un- less a renunciation as above specified has been executed, ac- knowledged and filed. In addition it is equally clear from the Code that every person having a prior right to administer, or having a right equal to that of the petitioner, must be cited. So that, for example, where a creditor of the intestate is the petitioner, the surviving husband or wife and all the next of kin are necessary parties. The foregoing statement must be qualified by the provision of section 2663 which Hmits neces- sary parties to those who are residents of the State. The pro- vision of section 2663 which limits the persons who must in any case be cited by the words " being a resident of the State," has absolutely no eifect upon the provisions of the statute already discussed which fix the order of priority of right to 710 SUBKOGATBS' COURTS. letters. So if a person having, under section 2660, a prior right to administration is a non-resident of the State, he need not be cited, except where the Surrogate in his discretion directs citation to issue to hira. But such person may at any time ap- ply to be made a party to the proceeding ; which application the Surrogate must grant, and if he establishes his right to priority the Surrogate must recognize it. Lihley v. Mason, 112 ]S[. Y. 525. In this case Judge Finch observed : " "Where the applicant had the first and paramount right and none existed prior or equal to his, the Surrogate might act at once because citation to any one would be useless. But this innocent meaning is carried beyond its purpose by the phrase- ology employed and has led to the logic that, since it is not necessary to cite a non-resident whatever his priority of right, the Surrogate may disregard that right and it is thereby lost. That he may disregard it seems to he true / that it is thereby lost, or ceases to exist, or has suffered a repeal, does not at all follow. It remains unchanged. The remedy for its enforce- ment has been modified, but the right itself has not been de- stroyed. The Surrogate may act without a citation to the non-resident citizen and disregard his right because he is not present to assert it. . . . But where, although not cited, the non-resident appears before the issuance of letters and presents his claim and stands upon his right the Surrogate may not deny it." § 20. When no citation is necessary.— The Court of Appeals has intimated {Libhey v. Mason, 112 N. Y. 525) that where the applicant has the first and paramount right to letters, that is, where, in the language of section 2663, there is no person a resident of the State who has a right to administer, prior or equal to that of the petitioner, the Surrogate may act at once upon the petition. Where there are others having equal rights the same rule holds if renunciation of those who had equal rights and were residents of the State, are filed with the petition. So, if the widow of intestate decedent petitions for letters of administration it is not necessary that any citation should issue. Matter of Moulton, 10 N. Y. Supp. 717: Thus Surrogate Brad- ford, where several persons were equally entitled to adminis- tration, held that letters could be granted ex pa/rte to any one of them without citing the others, and that the citation was necessary only where there was an existing person or persons LETTERS OF ADMINISTRATION. 711 who had a preference to the applicant. Peters v. Public Ad- ministrator, 1 Bradf . 200. This was a case where the Surrogate had refused letters to the son of the mother of the intestate, who was an illegitimate child, on the ground of her being in- capable of having any kin through her natural parents. PubUo Adminisl/rator v. Hughes, 1 Bradf. 125. Subsequently and pending appeal from his decision the legislature passed a special act expressly giving the right of administration over the assets of the foreign intestate illegitimate to the children of the de- ceased mother of such illegitimate son or one of them. The Surrogate, upon the provisions of this act being presented to him in an application by one of said children for letters, revoked his prior order and issued letters to the applicant in pursuance of the act and without citing the others who were equally en- titled. This decision of course is superseded in this one regard by the provision of section 2(363 which adds to the statute as it then existed (2 R. S. page 139, 3d edition, § 36, which required a citation only where there were persons having a prior right) the words " or equal to that of." The rule as it now stands is well indicated in the case of Matter of the Administration of the goods and chattels of Benjamin Gwrser, deceased, 89 N. Y. 4:05, where the Surrogate issued letters of administration to one of two sisters who was unmarried, without notice to the other who was a married woman, the Court of Appeals, by Finch, J., said, " If the two had in all respects an exactly equal right, notice to one was an essential requisite to a valid ap- pointment of the other." But it was held that the priority given by the statute (2 R. S. title 2, part 2, chapter 6, § 28), now incorporated in section 2660 of the Code, to unmarried over married women operated, so that the unmarried and mar- ried woman did not have an exactly equal right but that the rifht of the unmarried woman was prior and that the action of the Surrogate was proper, and should be affirmed, reversing 25 Hun, 579. § 21. Same subject. — The provision of section 2663 that, " where it is not necessary to cite any person, a decree granting to the petitioner letters, may be made on presentation of the petition," is not to be taken as indicating that such letters will issue in any given case merely upon statements in the petition showing that it is not necessary to cite any person ; for sec- tion 2662 contains an express provision that a decree shall not be 712 subrogates' courts. made where a citation is not necessary until tKe petitioner pi^e- sumptively proves hy affidavit or otherwise to the satisfaction of the Surrogate aJZ the jurisdictional facts. And, in connection with this, provision is made that the Surrogate may issue a subpoena requiring any person to attend and be examined as a witness, •for the purpose of inquiry touching any of these matters. § 2662, C. C. P. These provisions taken together may fairly be construed as meaning that the Surrogate is not bound to issue citation upon the mere presentation of a written peti- tion, even though the same be duly veritied and suflBciently executed ; but that before directing the citation to issue he may in his discretion require additional proof of the facts and cir- cumstances upon which the proceeding is based. Moorhouse v. Hutchinson, 2 Dem. 429, 433. And, still in addition to this, the provision in section 2663, that the Surrogate may in his discre- tion issue a citation to a non-resident, or to those who have renounced, or to any or all persons interested in the estate whom he thinks proper to cite, implies some inquiry on his part as to the truth of the allegations in the petition, stating the names of the surviving husband or wife or next of kin prior to his act in deciding whether or not to issue the citation or to make the decree. Commonly, however, if the facts are stated in tlie petition with suflBcient exactness and there are no suspicious circumstances, and particularly if the applicant belongs to the first order of priority, letters will issue as of course. If the Surrogate is in doubt in regard to the person or persons entitled to succeed to the estate of the intestate, the general citation required by section 2663 must issue directly to all creditors of and persons interested in the estate, as well as the attorney general, and the public administrator of the proper county, requiring them to show cause why the petitioner should not be granted letters of administration. § 2663, Code Civ. Proc. § 22. Proof of the jarisdictional facts.— The Surrogate is not confined to any form of procedure or to any mode of proof in acting upon an application for letters. O^ Connor v. Hug- gins, 113 N. Y. 511, 516. And, once his decree has been made, if the jurisdictional facts appear to have been alleged and the necessary parties have been duly cited to appear before him, it will not thereafter be open to collateral attack, in the absence of fraud or collusion. In the case just cited the Court of Appeals, by Gray, J., says, " It is not material how the decision is reached, LETTERS OF ADMINISTRATION. 713 provided the facts which confer power to act were alleged." The proof, therefore, which the Surrogate will resort to, is first the verified petition, second, the proof " by afiidavit or other- wise " specified in section 2662, Code Civ. Proc. The words " duly verified," used as qualifying the petition, which must be presented, contemplates the verification required by the Code ; but it has been held that, even where there was no separate ver- ification appended to the petition, but merely an ordinary jurat, " sworn to before me this day of ," the court would entertain the presumption that the petitioner in being sworn, swore that the petition by him subscribed was true, etc., and that the petition would be deemed verified as required by the statute. Grozier v. Cornell Steamhoat Co., 27 Hun, 215. So, although, as has been already stated, an allegation in a petition in regard to one of the jurisdictional facts, such as the death of the intestate, when made upon mere information and belief, would, in the absence of other and sufficient proof of the facts so alleged, be insufficient to give jurisdiction to the Surro- gate {Roderigas v. East Eiv. Sav. Inst.,16 N. Y. 316), yet the verification of a petition which is by the petitioner sworn to be true " to the best of petitioner's knowledge and belief," has been held to be sufficient to authorize the issuing of letters. Sheldon v. Wright, 5 IST. Y. 497. § 23. Same subject. — The language of the present section therefore gives the Surrogate power to take the proof required to satisfy his judgment in any manner he may direct. The words, " By affidavit or otherwise," are very broad. In cases where there is no contest as to the facts, affidavits will usually be deemed sufficient. So also, where the witnesses are merely orally examined before the Surrogate upon the point or points as to which he requires a corroboration or a supplementing of the verified petition, once the decree is entered there will be a presumption (in favor of the performance of official duty and of the regularity of his official act) that sufficient and proper evidence of jurisdictional facts was given before the Surrogate. This is especially so where there are recitals of the jurisdictional facts in the letters of administration. Johnston v. Smith, 25 Hun, 171, 176, citing Westcott v. Cady, 5 Johns. Ch. 334, 343 ; Bolton v. Brewster, 32 Barb. 389, 394 ; Van Deusen v. Sweet, 51 N, Y. 385 ; Porter v. Purdy, 29 N. Y. 106. The status of the applicant being a material inquiry, the Surrogate may in- 714 StTRKOGATES' COURTS. quire into such status. E. g., where petitioner alleged she was intestate's widow it was held proper to take proof of her actual marriage, the issue being properly raised. Matter of Gerlaoh, 29 Misc. 90. § 24. What will prevent the issuance of letters. — The issu- ance of any letters of administration upon the estate of an al- leged intestate decedent will be denied : (a) In case the alleged decedent is shown to be living. (t) In case there is not sufficient proof of death. Moderigas V. East Riv. Sav. Inst., 76 N. Y. 316. (c) In case there are no assets of the decedent at the time of his death, or afterwards in the Surrogate's County. Matter of Brewster, 5 Dem. 259, 265, and cases cited. {d) In case the decedent left a will. (e) In case it appears that the assets claimed to be the basis of jurisdiction are being or have been already administered upon. In case the objection to the issuance of letters of administra- tion is that the decedent, alleged to be intestate, in fact left a last will and testament, it is proper for the Surrogate to stay the proceedings for administration {Fsham v. Oibbons, 1 Bradf. 69. See sec. 4, above), and to entertain separate proceedings to determine the validity of the alleged will. Estate of Taggart, 40 N. Y. St. Rep. 368. It is not proper to investigate the validity of the will in the proceedings for administration {id.), and where the proceedings for the probate of the alleged will result in a decree by the Surrogate refusing it probate, the pro- ceedings for administration may then be resumed and letters issue, unless the action of the Surrogate is staj^ed by an appeal duly perfected, in which case the appointment of an adminis- trator during the operation of such a stay is improper and void. See Hicks v. Hicks, 12 Barb. 322. This is not affected bv the provisions of section 2583, Code Civ. Proc, above discussed. That section merely provides that an appeal from a decree re- voking probate of a will or revoking letters testamentary, etc., does not stay the execution of the decree or order appealed from. Consequently, if a Surrogate makes a decree revoking probate of a will and revoking the letters testamentary issued there- under, the execution of the order is not stayed ahd the rights of the executors under such letters terminate ; but the Surro- gate has no power pending the appeal to take the further action LETTERS OF ADMINISTRATION. 715 involved in the issuance of letters of administration. But the issue whether decedent left a valid will is a fundamental one and the Surrogate passes on it in the proceeding for letters of administration, and may hear evidence on the factum of a will. If he disbelieve the genuineness of the alleged will or the valid- ity of its execution he determines the issue adversely and issues letters. Matter of Cameron, 47 App. Div. 120 (where alleged will was not . produced, but shown to have been pro- bated in Illinois). § 25. The bond of an administrator. — The subject of the bonds of administrators and executors will be more fully dis- cussed in chapter X. It is sufficient at this point to note the section of the Code which requires the administrator, as a con- dition precedent to the issuance of letters to execute and file the proper bond. The section is as follows : Administrator's bond. A person appointed administrator, before letters are issued to him, must file his official oath, execute to the people of the state, and file with the surrogate, the joint and several bond of himself and two or more sureties, in a penalty fixed by the surrogate, not less than twice the value of the personal prop- erty of which the_ decedent died possessed and of the probable amount to be recovered by reason of any right of action, granted to an executor or administrator, by special provision of law. The sum to be fixed as the amount of the penalty must be ascertained by the surrogate, by the examination on oath of the applicant or any other person, or otherwise, as the surro- gate thinks proper. The bond must be conditioned that the administrator will faithfully discharge the trust reposed in him as such and obey all lawful decrees and orders of the surrogate's court touching the administration of the estate committed to him. But where a right of action is granted to an executor or administrator by special provision of law, if it appears to be impracticable to give a bond sufficient to cover the probable amount to be recovered, the surrogate may, in his discretion, accept modified security, and issue letters limited to the prose- cution of such action, but restraining the executor or admin- istrator from a compromise of the action, and the enforce- ment of any judgment recovered therein, until the further 716 SUEEOGATES' COTJETS. order of the surrogate on additional fui'tlier satisfactory se- curity. In cases wiiere all the next of kin to the intestate consent, the penalty of the bond need not exceed double the amount of the claims of creditors, against the estate, presented to the surrogate, pursuant to a notice to be published twice a week for four weeks in the oflScial state paper, and in two news- papers published in the city of New York, and once a week for four weeks in two newspapers published in the county where the intestate usually resided, and in the county where he died, reciting an intention to apply for letters under this provision, and notifying creditors to present their claims to the surrogate on or before a day to be fixed in such notice, which shall be at least thirty days after the first publication thereof ; but no bond so given shall be for less than five thou- sand dollars ; and such bond may be increased by order of the surrogate for cause shown. Pending such application, no temporary administrator shall be appointed, except on peti- tion of such next of kin. § 3664, Code Civil Proc. Former § 2667 unchanged. § 26. The letters. — The Surrogate's decree granting letters will issue, («) In case, where no citation was necessary, he is satisfied of the necessary jurisdictional facts either from the verified petition or b}^ proof " by affidavit or otherwise," (section 2662 Code Civ. Proc). (5) Where when citation is necessary he is similarly satisfied on the return of the citation and upon the proof then submitted or taken. The words of section 2663 requiring him to make such a de- cree in the premises " as justice requires " are very broad ; but, by the following clause in the same section, he is limited in his award of administration, "to any party to the special proceed- ing, who appears to be entitled thereto." But this right must be asserted in the proceedings by the party claiming. So, if the Surrogate, in the exercise of the discretion given him by sec- tion 2663, deems it unnecessary to direct the citation of a non- resident, although he may have a right prior to the petitioner's, the Surrogate is warranted in awarding administration to the petitioner as against such non-resident person having the prior right, for the reason that he is not apa/rty to the special proceed- LETTERS OF ADMINISTEATION. 717 mg. See section 19 above. No prejudice can result in ordi- nary cases from the operation of the rule fixed by this section as it gives the freest right of intervention to all such parties and makes their citation necessary in all cases where they are residents of the State. And Surrogates will usually require their citation unless unreasonable delay would be caused thereby, particularly if petitioner is a creditor or public ad- ministrator. § 27. The form of the letters. — The form of the letters issued to an administrator in chief is usually general in terms, and grants administration of all and singular the goods, chat- tels and credits belonging to the intestate and constituting the appointee administrator thereof. Letters. BY THE GRACE OF GOD FREE AND INDEPENDENT. To Send Greeting : Whereas, the said at the time of death, was an inhabitant of the said County, and as is alleged, lately died intestate, having, whilst living and at the time of death, goods, chattels, or credits within this State, by means whereof the ordering and granting Ad- ministration of all and singular the said goods, chattels and credits, and also the auditing, al- lowing and final discharging the account thereof doth appertain unto us ; and we being desirous that the goods, chattels and credits of the said deceased may be weU and faithfully admin- istered, applied and disposed of, do grant unto you, the said full power by these pres- ents, to administer and faithfully dispose of all and singular the said goods, chattels and credits, to ask, demand, recover and receive the debts which unto the said deceased, whilst living, and at the time of death did belong, and to pay the debts which the said deceased did owe, as far as such goods, chattels and credits wiU thereto extend, and the law require, hereby re- quiring you to make or cause to be made, a true 718 SUBBOGATES' COUETS. and perfect inventory of all and singular the goods, chattels and credits of the said deceased which shall or have come to your hands, posses- sion or knowledge; and the same so made to exhibit, or cause to be exhibited, into the office of the Surrogate of the said County, at or before the expiration of three months from the date hereof ; and also to' render a just and true account of administration when thereunto required: And we do by these presents depute, constitute and appoint you the said administrat of aU and singular, the goods, chattels and credits which were of the said deceased. In Testimony Whereof, we have caused the Seal of Office of our said Surrogate to be here- unto affixed. Witness, THEODORE H. SILKMAN, Surrogate of said County, at the Town of White Plains, the day of in the year of our Lord one thou- sand eight hundred and ninety Surrogate. {'•»■} Letters. (Al- ^^B PEOPLE OF THE STATE OF NEW YOKE, ternate form.) bt the grace of god free and independent. To all to Whom These Presents Shall Come or May Concern, Send Greeting : Know ye. That at a Surrogate's Court, held in and for the County of Erie and State of New York, at the Surrogate's Office in the City of Buffalo, in said County, on the day of one thousand eight hundred and ninety be- fore Hon. Louis W. Marcus, Surrogate, a decree was duly made appointing administrat of the Personal Estate of late of the of in said County, deceased, intestate. And said administrat having taken the oath of office, and executed a Bond as required by said decree. Now, therefore, we do grant these Letters of Administration, unto you, the said liETTEES OP ADMINISTEATION. 719 giving and granting unto you full power and authority to administer and dispose of the Personal Estate of said deceased as required by law. In Testimony Whereof, We have caused the Seal of our said Surrogate's Court to be here- unto aflSxed. .-jos Witness, Hon. LOUIS W. i L. g 1 MARCUS, Surrogate of said ' ^^_^ ^ County, at the City of Buffalo, in said County, the day of in the year of our Lord one thousand eight hundred and ninety Clerk of the Surrogate's Court But letters are perfectly valid which specify in detail the powers granted to the administrator, for the law does not direct what language should be employed in letters issued by the Sur- rogate, or what precise powers or duties should be laid down in the same. Martin v. Dry Dock, East Broadway and Battery Railroad Co., 92 N. Y. 70, 75. Consequently the Court of Appeals have held that, as the Surrogate is empowered to di- rect and control administrators, there is no reason why in the exercise of this authority he may not limit the application of the letters originally issued by him and upon which, as has been elsewhere noted, the authority of the administrator depends. So where a Surrogate issued letters of administration contain- ing a limitation limiting the power of the administratrix to prosecute only and not giving her power to collect or com- promise {Martin v. Dry DocTc, East Broadway and Battery Bailroad Co., 92 N. T. 70, 75), the Court of Appeals observed, " We think it rests with him, (the Surrogate), to say, in the exercise of his discretion, what powers should be conferred upon an administrator, and so long as he does not exceed the authority vested in him by law, there is no valid ground for assuming that the letters issued by him are not authorized." And the court held that so long as the Surrogate did not ex- tend the powers of the administrator beyond the statutory limits, within those limits he could confine the power of the 720 subrogates' courts. administrator in the original letters as in his discretion he thought best. The court intimated however, that if the Sur- rogate should improperly limit the power of an administrator, the party in interest could review his determination upon ap- peal ; but that the objection was not one which could be raised collaterally in a suit by the administratrix ; nor could the let- ters be held void. Id. at page 76. Limited power to prosecute only, gives no power to issue execution. Lambert v. Metrap, St. E. Co., 33 Misc. 579. § 28. Same subject.— This power (recognized by the Court of Appeals in the case above discussed, to issue letters limiting by their terms the powers of the administrator in dealing with the estate) the Surrogate is expressly directed to exercise in the case covered by section 2664-, Code Civil Proc. above quoted, where a right of action is granted to the administrator by special provision of law, and it appears to be impracticable to give a bond in a penalty sufficient to cover the probable amount to be recovered, in which case the Surrogate is given power in his discretion to accept modified security, and to issue letters limited to the prosecution of the action and re- straining the administrator from compromising the action or enforcing the judgment recovered therein until the further order of the Surrogate on additional, further, satisfactory se- curit}^ It has been held that the provisions of this section are limited only to cases where there is a right of action granted by special provision of law, and not to one in which there is an ordinary claim of debt due the intestate. Estate of Mallon, 13 Civil Proc. 205. This, however, must be taken only as limiting the right of the Surrogate to accept modified security, as under the decision of the Court of Appeals the right to limit the letters is general. Therefore, while the Sur- rogate must, in the cases specified in section 2664, require security in an amount at least double the value of the personal property of which the decedent died possessed and of the prob- able amount to be recovered by reason of any right of action granted by special provision of law (where it seems practicable to give such a bond) and while, moreover, in case a bond in such amount is given, the Surrogate will ordinarily issue let- ters general and unlimited in their terms, yet where modified security is accepted the proper practice is to issue letters in the usual form adding a clause restraining the executor or ad- LETTERS OF ADMLNISTKATION. 721 ministrator from compromising the claim or action or enforcing any judgment recovered therein until the further order of the Surrogate on additional, further, satisfactory security. Matter of Malloij, 1 Dem. 421, 424, Livingston, Surr. This restriction does not in any way interfere with the authority of the execu- tor or administrator over the other assets of the decedent ; he can go on and exercise his authority over them as if no limita- tion had been inserted in the letters. But if it is desired to compromise the action, or if, after he has prosecuted it to judg- ment, it is desired to enforce such judgment, a veriiied petition should be presented to the Surrogate setting forth the restric- tion contained in the letters, stating the additional amount which will come into the hands of the executor or administra- tor by reason of the pi'oposed compromise, or in the event of the enforcement of the judgment, and asking that an order may be made, upon giving further security satisfactory to the Surrogate, revoking the restriction imposed on the executor or administrator in the letters whereupon he will be free to compromise the claim or to enforce the judgment in all re- spects as if the original letters had not been restricted. Ibid. The provisions of sections 2590 to 2594 both inclusive, already quoted in the discussion of letters testamentary, q. v., are equally applicable to letters of administration. Briefly sum- marized in this connection they relate first, to the formal re- quisites of letters of administration which is illustrated by the precedents above suggested for letters ; second, they relate to the effect of such letters as conclusive evidence of the author- ity of the persons to whom they are granted until revoked, or until the decree granting them Is reversed upon appeal ; third, they relate to the priority of letters of administration first issued from a Surrogate's Court having jurisdiction to issue them, so as to give the parties having prior letters the right to demand and recover from persons holding subsequent letters any of the decedent's property which he may have in his hands ; fourth, a technical requirement with regard to the computing of time after the issuance of letters of administration, and the requisites of the official oath of an administrator in respect to which the discussion already had {supra) may be referred to. § 29. Revocation of letters. — The subject of revocation of letters of executors and administrators is discussed separately under chapter 9 of this part to which reference is hereby made. 46 CHAPTEE V. ADMINISTEATION DE BONIS NON. § 1. Definition. — An administrator de honis non adminis- tratis, is one appointed to complete the administration, of an estate interrupted by the death of the former administrator, or by his voluntary or involuntary retirement from the of- fice. The Code of Civil Procedure combines its directions of the statute in regard to administrators with the will annexed and administrators delonis non. The section is as follows : Where all the executors, or all the administrators, to whom letters have been issued, die, or become incapable, as pre- scribed in section 2692, or the letters are revoked as to all of them ; the surrogate must grant letters of administration to one or more persons as their successors, in like manner as if the former letters had not been issued ; and the proceedings to procuie the grant of such letters, are the same, and the same security shall be required, as in a case of intestacy, except that the surrogate may, in his discretion, in case where the estate lias been partially administered upon by the former repi'esentative or representatives, fix as the penalty of the bond to be given by such successor or successors, a sum not less than twice the value of the assets of tlie estate remain- ing unadmlnistered. § 3693, Code Civil Proc. An administrator with the will annexed, as has already been indicated, derives his powers in regard to the distribution of the estate from the will, as if he had been named executor, sub- ject, however, to the limitations noted in that connection. An administrator de honis non, however, should only be appointed as such, where all the administrators to whom letters have been issued, die or become incapable (as prescribed in section 2692, that is to say, either by reason of lunacy, or by conviction of an infamous offense or otherwise) of discharging the trust (722) ADMINISTEATION DE BONIS NON. 723 reposed in them, or where the letters of all the administrators are revoked. See section 2693. But where these same condi- tions, or any of them, exist with respect to an executor or exec- utors, or an administrator with the will annexed, it presents a case for the appointment of a further administrator with the will annexed. The first point to be noted, therefore, under section 2693 is, that where there are several administrators, an administrator de honis non is never to be appointed unless all of them die, become incapable, or have their letters revoked, for it is expressly provided by the previous section 2692 that, where one of two or more administrators dies or becomes lunatic, or is convicted of an infamous ofifense or becomes otherwise incapable of discharging the trust reposed in him, or where his letters are revoked, a successor to such administrator whose letters are re- voked shall not be appointed, but the other or others may pro- ceed to complete the administration of the estate pursuant to the letters issued and may continue any action or special proceeding brought by or against them. The exception noted in sec- tion 2692 which is not incorporated in the foregoing extract applies only to the cases where there is a will under which an executor or executors or one or more administrators with the will annexed are administering the estate. In such a case a successor to one whose letters are revoked for any of the above stated causes will be appointed, " if such an appointment is necessary in order to comply with the express terms of the will." § 2. The estate must be unadministered. — The words de honis non signify that the administration now under discussion is limited to such part of the estate of the decedent as has not been administered by the former administrator. As Blackstone remarks (part 2, page 506) in this connection " when it becomes necessary for the ordinary to appoint a successor to an admin- istrator," who he points out is merely the oiiicer of the ordi- nary and not the appointee of the testator, "it is necessary for the ordinary to commit administration afresh of the goods of the deceased not administered by the former administrator." The distinction above made between an administrator with the will annexed and an administrator de honis non is in many respects one that does not need to be emphasized, for in most particulars the courts have used the words de honis non in speaking of what it is manifest is an administration o. t. a. Thus the Court of Appeals in Casoni v. Jerome, 58 N. Y. 315, at page 320, says : 724 SITREOGATES' COURTS. " The bond upon which this action is brought was given on the appointment of Mrs. Levy, as administratrix de honis nou of the estate of her husband upon issuing to her letters of administra- tion with the will annexed." In this particular case executors had previously qualified, acted and been removed, and of course in such a case the administrator c. t. a. is an administrator of an estate not administered, but such administration is governed by the rules relating to the administration with the will annexed, and is limited in regard to the powers which such administrator has, in distributing the estate by the valid provisions of the will. An administrator de honis non, pure and simple, is an adminis- trator of an estate left unadministered by a previous adminis- trator in chief. But it is said that where letters of administration with the will annexed are granted in a case where letters testa- mentary have never been issued and cannot issue, the adminis- trator may properly be designated an administrator cum. testa- mento annexo de honis non. In re Ward, 1 Redf. 254. The Avording of the original statute which is now substantially em- bodied in the Code was in this case paraphrased by Surrogate McVean in the following language : " The true construction of this statute (2 E. S. 78, § 45), which is rendered ambiguous by a desire to economize in the use of words, is this : If an ex- ecutor or original administrator with the will annexed shall die or become incapable as aforesaid, or the power and authoiity of all of them shall be revoked according to law, letters with the will annexed de honis non shall be granted to persons in the same order of preference as is prescribed in the law of original administration with the will annexed ; and if an original admin- istrator in case of intestacy shall die, etc., letters de bonis non shall be granted to persons in the same order of preference as is prescribed in the case of granting letters originally on the estates of intestates." The provisions of section 2693 are not inconsistent with this construction of the former statute; the section provides that the letters must be granted in like manner as if the former letters had not been issued, which makes the rule already noted applicable. The same security is required as in a case of intestacy except that the minimum penalty of the bond to be given, instead of being determined by the amount of the estate at the death of decedent is determined by the amount of the assets of the estate remaining unadministered. Where, therefore, the decedent left a will, whether an executor ADMINISTRATION DE BONIS NON. 725 has partly administered or it has already been necessary to ap- point an administrator with the will annexed, and the admin- istration is interrupted for any of the reasons specified in sec- tion 2693, the proper course is to apply for an administrator with the will annexed and to follow the procedure indicated in the discussion in that connection. On the other hand where- ever the decedent left no will and the administration of the estate has been interrupted for any of those reasons as specified, the application should be for the appointment of an adminis- trator de honis non. In whatever way the authority of an ad- ministrator terminates whether by death, removal or otherwise, if the estate in his hands has been fully administered, that is to say is in condition to distribute, it is never necessary to ap- point an administrator he honis non ; nor would it be proper to do so ; the procedure in such case is to compel the final settle- ment of such administrator's account and to make a decree of distribution. Prentiss \. Weatherly, 68 Hun, 114, 117. § 3. Rights to administer de bonis non Section 2693 is capable of no other construction than that the right to admin- istration de honis non given therebj'^ follows the same order of preference of the same classes of persons as in the case of origin nal administration. Matter of Ward, 1 Redf. 254, 256 ; Brad- ley V. Bradley, 3 Redf. 512, Calvin, Surr. So where there is no person having a prior right to the applicant it is not neces- sary that citation should issue. Coih v. Bea/rdsley, 37 Barb. 192. § 4. Powers and duties. — The powers and duties of an ad- ministrator de honis non correspond to those of the representa- tive of the estate whom he has been appointed to succeed. The administration is merely the continuance of the prior ad- ministration, and wherever acts are required to be done by the representative of the estate within a given time limited by the issuance of letters the time so specified must be reckoned from the issuing of the first letters, except there be an express provision to the contrary. § 2693, Code Civ. Proo. ; Slocum v. English, 2 Hun, 78, 81 ; -S'. C, 62 N. Y. 494, 496. An ad- ministrator de honis non takes the estate where his predecessor left it, and in respect of the time to sell real estate, as well as in most other respects, his administration is a mere continuance of that preceding. Matter of Kingsland, 60 Hun, 116, 121, citing Slocum v. English, supra. Any other rule Avould render 726 SUEKOGATES COURTS. uncertaia and vague the right of heirs, devisees, purchasers, and creditors; so, where the predecessor of the administrator de bonis non has been guilty of laches, or has not exercised due diligence in the prosecution of claims, or has done some act, or been guilty of some omission to act, prejudicial to his rights as representative, the administrator ^e Jowm non is bound thereby. Matter of Kingsland, 60 Hun, 116 ; WhitlocJcY. Bowery Savings Bank, 36 Hun, 460. And if a proceeding which he desires to institute is open to the defense that h'e has not exercised due diligence, his own diligence alone will not avail if his predeces- sor omitted to exercise proper diligence. § 5. Same subject. — -The administrator de bonis non has full power to compel his predecessor to account and to take all pro- ceedings necessary to that end. Dale v. Roosevelt, 8 Cowen, 333 ; Walton v. Walton, 1 Keyes, 1. This power is expressly given him, or, rather, the Surrogate's Court is given power to compel such accounting by virtue of section 2605 of the Code, which is as follows : Where letters have been revoked by a decree of the surro- gate's court, that court has, except in a case where it is other- wise specially prescribed by law, the same power to appoint a successor to the person whose powers have ceased, as if the letters had not been issued. The successor may complete the execution of the tiust committed to his predecessor; he may continue, in his own name, a civil action or special proceed- ing, pending in favor of his predecessor ; and he may enforce a judgment, order, or decree, in favor of the latter. The surrogate's court has the same jurisdiction, upon the petition of tlie successor, or of a remaining executor, admin- istrator, guardian or trustee, to compel the person whose let- ters have been revolsed, to account for, or deliver over money or other property, and to settle his account, which it would have upon the petition of a creditor or person interested in the estate, if the term of office, conferred by the letters, had expired by its own limitation. Under this section it has been held that the administrator de bonis non is the proper person to compel the accountino- {Bres- lin V. Smyth, 3 Dem. 251, Eollins, Surr. ; Matter of CBrien, 45 Hun, 284, 291), for the provision of the section is explicit that the jurisdiction to compel the accounting, or the delivery ADMINISTRATION DE BONIS NON. 727 of money or other property must be upon the petition of the successor. See Matter of Richmond, 63 App. Div. 488, 492. This case involved an administrator c. t. a. but is pertinent to this discussion. The administrator de honis non has no further power or au- thority over the estate than the preceding administrator pos- sessed at the time of his removal or . decease ( Whitloch v. Bowery Savings Bank, 36 Hun, 460), and succeeds to these powers only so far as the estate is unsettled. The authority of an administrator de honis non includes only such powers and functions as are necessary to completely settle and adjust the remaining affairs of the estate. The procedure upon the ac- counting is of course discussed separately under the general head of " accounting. " Since all statutory limits, as has been already noted, dated back to the issuance of the first letters, if an administrator de honis non moves for an accounting under section 2605 or 2606 he must initiate his proceedings within the ten years limited by the statute. Pitlcin v. Wilcox, 12 IST. Y. Supp. 622. So where an administratrix de honis non beo-an proceedings to compel an accounting by the representative of her deceased predecessor, the Court of Appeals {Matter of Rogers, 153 N. Y. 316), discussing the question directly of the effect of the statute of limitations as a bar to the proceedings, held first, that the rules of limitation were applicable to special proceedings the same as to civil actions (page 321, citing Code Civ. Proc. §§ 414, 3333, 3334, and Church v. Olendorf, 19 N. Y. St. Eep. 700) ; and second, that the authority for an adminis- trator de honis non to call the executor of his predecessor to an accounting in the Surrogate's Court was first conferred by sec- tion 2606 going into effect September 1, 1880 ; and third, that since the proceeding in question was instituted under that sec- tion and by the plaintiff as successor in administration, it could have been made immediately after such appointment (citing Code Civ. Proc. § 2643 ; Matter of Wiley, 119 N. Y. 642) ; and consequently while the remedy provided by section 2606 could not have been applied for in the case at bar until after the death of the administrator or executor first appointed which in that case took place on the 2d of July, 1885, " Or more than six but less than ten years before this application was made on the 27th of July, 1891, the plaintiff had the right to the benefit of the statute in her capacity as administratrix giving her ten non. 728 SUEEOGATES' COTTETS. years in which to apply for the remedy." And the court held further that the fact that she was the sole next of kin and would, had she applied in that capacity, have been governed by the usual period of six years, was merely a coincidence and her rights as administratrix after having been duly appointed were not affected thereby. Wiggins v. Sweet, 39 Amer. Dec. 716. The court adopted the language of the Supreitie Court in Mat- ter of Zatz, 33 Hun, 618, where an administrator de bonis non sought to compel the executor of his predecessor to account, (which language is quoted from the opinion of Judge Bradley at pages 324 to 325). Surrogate's Court, City and County of New York. Petition for letters of admin- In the Matter of the Appli- istration de bonis cation for Letters of Ad- ministration on the Goods, Chattels and Credits (left Unadministered or De Bonis Non) of Deceased. To the Surrogate's Court of the City and County of New York : The petition of respectfully shows : That your Petitioner is a resident of No. in the and is the of the said deceased, and is of full age ; that said deceased departed this life at on the day of 18 that Letters of Administration upon the goods, chattels and credits of deceased, were duly granted by the Surrogate of the City and County of New York on the day of 18 unto the of said deceased, that said administrat of the Estate of said deceased, has since departed this life, (or was removed upon proceed- ings duly had in this court by final order made and entered on the day of 18 ) on the day of 189 leaving certain property and assets of the said still uuad- ministered ; that your Petitioner has to the best of h ability ascertained and estimated the per- ADMINISTRATION DE BONIS NON. 729 sonal estate of which the said died possessed, and the value of the same does not exceed the sum of dollars. And your petitioner has been informed, and believes, that the said deceased left h surviving only next of kin ; that said deceased was and was at or immediately previous to death a resident of the County of New York. Your petitioner therefore prays that a decree of the said Surrogate's Court of the City and County of New York issue appointing your peti- tioner Administrator De Bonis Non of the goods, chattels and credits of said deceased. The decree granting letters is substantially identical in form with that granting letters of administration except as to re- citals which should follow the following precedent : Letters of ministration bonis non. ad- ds THE PEOPLE OF THE STATE OF NEW YORK, BY THE GBACE OP GOD FKEK AND INDEPENDENT. To deceased, intestate : Whereas was duly appointed the ad- ministrator of the goods, chattels and credits which were of the said intestate, and letters of administration were duly granted and issued by the Surrogate of Westchester County to the said on the day of 18 And Whereas the said has since departed this life (or if removed recite the order and its date of entry, as in petition) leaving property and assets of the said intestate still unadministered. And Whereas the said at or immediately previous to death was an inhabitant of the County of West- chester, having whilst living and at the time of death, goods, chattels and credits, within this State, by means whereof the ordering and granting administration of all and singular the goods, chattels and credits and also the audit- ing, allowing and final discharging the accounts thereof, doth appertain unto us ; and we being desirous that the goods, chattels and credits of the said deceased may be well and faithfully ad- 730 surrogates' courts. ministered, applied and disposed of do grant unto you the said full power and authority by these presents to administer, and faithfully dispose of all and singular the goods, chattels and credits left unadministered ; to ask, demand, receive and recover the debts which unto said intestate whilst living and at the time of death did belong, and to pay the debts which the said intestate did owe at the time of death, so far as such goods, chattels and credits will thereunto extend, and the law requires, hereby requiring you to make or cause to be made a true and perfect inventory of all and singular the goods, chattels and credits of said intestate, which have or shall come to your pos- session or knowledge, and the same so made to exhibit or cause to be exhibited and filed in the Office of the Surrogate of the County of West- chester on or before the expiration of three months from the date hereof, and also to render a just and true account of your administration when thereunto required. And we do by these presents depute, consti- tute and appoint you the said Adminis- trat de bonis non of all and singular the goods, chattels and credits which were of the said deceased, intestate, left unadministered as afore- said. In Witness Whereof, We have caused the Seal of Office of our said Surrogate to be here- unto affixed. Witness Surrogate of our said County of West- chester at the Surrogate's Of- fice, in the town of White Plains this day of 18 Surrogate. CHAPTER VI. ANCILLAET ADMINISTRATION. Article 7, of title 3, of chapter 18, of the Code is entitled Foreign Wills and Ancillary Letters. By it provision is made for giving proper effect in this State to foreign testamentary dispositions and probate. The jurisdiction of the Surrogates in regard to such wills and to the issuing of ancillary letters is derived wholly from the statute. § 1. Definition. — The words, " Ancillary Administration," have been thus defined, " A local and subordinate administra- tion of such part of the assets of a decedent as are found witbin a State other than that of his domicile, and which the law ot' the State where they w^ere found requires to be collected under its authority in order that they may be applied first to satisfy the claims of its own citizens, instead of requiring the latter to resort to the jurisdiction of principal administration to obtain payment ; the surplus, after satisfying such claims to be remitted to the place of principal administration." Cen- tury Dictionary. This definition is an excellent one and em- phasizes the fact that ancillary administration is a secondary or subordinate one. The statutory provisions consequently pro- viding for the granting of ancillary letters testamentary or of administration with the will annexed or of administration upon a foreign grant of administration are conditioned first, by a resrard for the rights of creditors resident in the State and their protection, and second, by principles of comity under which the New York law recognizes the status of a foreign executor or administrator in his own State or country, whose right to dis- tribute the estate after the payment of debts and administration expenses in this State is safeguarded. The article commences by declaring, in section 2694, the statutory rule by which in this State, the validity and effect of testanientary dispositions of real and personal property disposed of by will are to be reg- ulated, where the property of whatever character is situated within this State ; as well as the manner in vrhich such property (731) 732 SUKEOaATES' COURTS. is to descend or to be distributed where it is not disposed of by will. The section is unambiguous and reads as follows : Testamentary dispositions ; what law governs. The validity and effect of a testamentary disposition of real property, situated within the state, or of an interest in real property so situated, which would descend to the heir of an intestate, and the manner in which such property or such an interest descends, where it is not disposed of by will, are regulated by the laws of the state, witliout regard to the res- idence of the decedent. Except where special provision is otherwise made by law, the validity and effect of a testamen- tary disposition of any other property situated witLin the state and the owneiship and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or counti'y, of which the decedent was a resident, at the time of his death. § 3694, Code Civil Proc. This provision of the Code is new. It is capable of subdivi- sion into four propositions. {a) The validity and effect of a testamentary disposition of real property or of an interest in real property situated within this State is regulated b}' the laws of this State irrespective of the residence or non-residence of the deceased. (h) The manner in which real property or an interest in real property situated within the State shall descend from an intes- tate decedent, is to be regulated by the laws of this State irre- spective of his residence or non-residence. (c) The validity and effect of a testamentary disposition of property other than real situated within the State must be regu- lated by the laws of the State or country of which the decedent died a resident. {d) The ownership and distribution of property other than real belonging to an intestate and situated within the State must be regulated by the laws of the State or country of which the decedent died a resident. Propositions (c) and {d) are subject to the exception, " where special provision is otherwise made by law." In a case origi- nating prior to the enactment of these provisions the Court of Appeal had decided that the New York law must govern the construction of the will of one, who though a citizen of this country died a resident of France. Oaulfield v. Sullivan, 85 ANOILLARY ADMINISTRATION. 733 N. Y. 183. This case was a peculiar one ; the decedent had resided in France several years prior to his death, his will was made in French and ia France, and his will with a codicil thereto were admitted to probate in New York County, where original letters of administration with the will annexed were granted. By the will the testator appointed a universal lega- tee in France, which corresponds to an executor in this country, to whom he gave all his property in France on condition of her releasing all claims to his property in America. By his codicil he left all his property in America to his two brothers, citizens of this country, and appointed one of them, a resident of New York County, executor as to all his property in America. The Court of Appeals held that, as the testator was a citizen of this country, claiming his domicile here, but temporarily residing ia France, his will must in our courts be construed according to our laws. Opinion of Earl, J., at page 159. Section 2691: was not passed upon in this connection and it may be doubted whether the decision of the court would have been inconsistent with this section even had the case arisen after the enactment of the section, for there was a manifest intent in the will and codicil taken together, that the distribution of his American property should be by an American executor and should not in any manner be combined or mixed up with the administration of his property in France, which was under a separate executor and bequeathed to a separate legatee. So far however as the case cited purports to lay down the general rule in this State, it is superseded by the rule declared by section 2694. It is accordingly unnecessary to cite other cases declaring the rule as it formerly existed. This section must not be extended be- yond its express intent. It must not be taken as extending so as to limit the power of a New York Surrogate to control an ancillary administrator under a foreign will or administration in his custody and disposition of New York assets, prior to tlieir transmission to the principal executor or administrator. The Jaws of this State and the rules established by our courts affect- ing the control and management of ancillary funds must govern as regards property within the control of the ancillary adminis- trator and hence of the Surrogate. If ancillary funds are removed properly or improperly to the place of principal admin- istration the Surrogate loses his jurisdiction thereof but may in case of improper removal hold the ancillary administrator to 734 StJEEOGATES' COURTS. strict accountability. See Johnson v. Johnson, i Dem. 93. See also Lawrence v. Mmendorf, 5 Barb. 73. § 2. Difference between ancillary and principal adminis- tration. — The difference between ancillary and principal ad- ministration is material and important when there are several administrations. Where a decedent dies in another State or country the custody^ management, and distribution of his prop- erty ia that State are of course exclusively committed to the persons who may be appointed there by the proper court as administrators of his credits and effects. Carroll v. Hughes, 5 Eedf. 337, 342, citing Dayton on Surrogates, 208; Schults.v. Pulver, 11 Wend. 361, 363 ; Laiorenoe v. Ehnendorf, 5 Barb. 73, 76 ; Williams on Executors, 291, n. ; 3 Eedf. on Wills, 26, 28. The administration granted in the country of the deceased is the principal one and that granted ia any other country is merely ahcillary or auxiliary to it. Id. Those charged with the ancil- lary administration are liable to account in the country where it was granted for all the assets collected thereunder, after pay- ing from said assets all the debts due to resident creditors and the proper commissions and expenses of administration ; the balance may then be ordered, in the discretion of the court be- fore which the accounting is had, either to be distributed to the persons entitled thereto, or to be remitted to the place of domi- cile of the deceased, to be there distributed by the principal administrator. Carroll v. Hughes, supra, citing Parsons v. Ly- man, 20 N. Y. 103 ; Despard v. Churchill, 53 JST. Y. 192. See also Hendrickson v. Ladd, 2 Dem. 402. So where the adminis- tration in this State is subsidiary to that at the place of the decedent's domicile, it must under the rules laid down in this chapter relate exclusively to the assets in this State and the jurisdiction of the New York Surrogate is limited to them. Black V. Woodman, 5 Eedf. 363, citing Lynes v. Coley, 1 Eedf. 405. § 3. Administration in this state under a foreign probate. — The necessity for the granting of ancillary or subordinate letters lies in the fact that foreign executors, which includes foreign administrators with the will annexed or foreign admin- istrators, have no standing ex virtute officii in the courts of this State. This rule, that a foreign executor cannot sue or be sued purely in his representative capacity in the courts of this State, is well settled. Farrington v. American L. <& T. Co., 18 Civ. ANCILLARY ADMINISTRATION. 735 Pro. 135 ; Flandrow v. Hammond, 13 App. Div. 325, citing Matter of WM, 11 Hun, 12i; Vermilyea v. Bcatty, 6 Barb. 429 ; Field v. Cfibson, 20 Hun, 27i ; Hopper v. Hopper, 125 N. y. 400 ; Johnson v. TFaKw, 112 id. 230 ; Doolittle v. Zewis, Y Johns. Ch. 45 ; Petersen v. The Bank, 32 N. Y. 21 ; Law- rence V. Lawrence, 3 Barb. Ch. 74. By the phrase, " Foreign executor," the court never means the mere non-residence of the individual holding the office but the foreign origin of the rep- resentative character. Hopper v. Hopper, 125 N. Y. 400. {^QQ post, p. 765.) It is not the residence of an executor out- side of the State which makes him a foreign executor but the creation of his official character under and by force of a law foreign to our own. The representative character therefore is the sole product of the foreign will and, depending upon it for existence, cannot pass beyond or have any force and effect outside of the jurisdiction of its origin. So, in the case just cited, Judge Finch observ^es that an individual may come here and acquire rights or incur liabilities which a New York tri- bunal will defend or enforce. But the fact that he has a rep- resentative character in a foreign jurisdiction gives him in our tribunal no representative rights or liabilities. Jd. at page 403. See Taylor v. Syme, 162 N. Y. 513 ; Sohlater v. Bow. Sav. Bk., Ill N". Y. 125, 129 ; Matter of Fitch, 160 IST. Y. 87, 95. So a foreign executor may sue or be sued in our courts upon his own contract {Lawrence v. Lawrence, 3 Barb. Ch. 74 ; Johnson v. Wallis, 112 N. Y. 230 ; Hopper v. Hopper, 125 N. Y. 400, 403 ; Flandrow v. Hammond, 13 App. Div. 325, 327), but not upon the contract of his testator. See Johnson v. Wal- lis, 112 JST. Y. 230. To enable him to do the latter is the ob- ject of the sections of the Code about to be discussed. These provisions indicate when and in what manner a foreign exec- utor may become an executor here and clothe himself with a rep- resentative character under our law, and by force of an au- thority conferred within our jurisdiction. This is by virtue of the following section : Where a will of personal property, made by a person who resided without this state at the time of the execution thereof, or at the time of his death, has been admitted to probate within the foreign country, or within the state, or the territory of the United States, where it was executed, or where the tes- 736 surrogates' courts. tator resided at the time of his death ; the surrogate's court, having jurisdiction of the estate, must, upon an application made as prescribed in this article, accompanied by a copy of the will, and of the foreign letters, if any have been issued, authenticated us prescribed in this article, record the will and the foreign letters, and issue thereupon ancillary letters testa- mentary, or ancillary letters of administration with the will annexed, as the case requires. § 2695, Code Civil Proc. (See also L. 189i, c. 731 as to probate here of wills of United States citizens proved in the British Empire, where the}' resided at death, provided such wills relate to property in this State ante, p. 333.) By compliance with the terms of this section in a proper case, a foreign executor acquires an official and representa- tive character under our law and becomes an executor here, and may be described as, " An official of our State acting under our laws." Cummings v. Banks, 2 Barb. 602. But the compliance must be shown. See Taylor v. Sym.e, 102 K. Y. 513, where letters were issued ancillary to a Louisiana probate but decedent in fact resided and executed the will in Alabama. The Surrogate not noting this discrepancy granted letters, and the ancillary administrator having brought suit as such it was held open to collateral attack for want of jur- isdiction. §4. Ancillary executors, powers; title. — It follows from what has been stated that if the ancillary executor has been properly appointed he becomes, so far as our courts are con- cerned, in protecting his rights and those of creditors within this State, a local executor. In Smith \ . Second If at. BTc., 169 N. Y. 467, 474, the court holds that an ancillary administrator has, except in the particulars specified in this section, the same general powers as a domestic administrator. These exceptions do not curtail or limit his title to the assets in his hands. Ibid. So he may pledge these assets for the purposes of the estate to the same extent as could a domestic administrator. Ihid. He is amenable to suits by creditors regardless of whether they be residents or non-residents of the State. This is not only a rule based upon reason, but distinctly based upon statute. Sec- tion 2702 provides as follows : AKCILLARY ADMINISTRATION. 737 Ancillary executor's and administrator's general powers and duties. The provisions of this chapter, relating to the rights, pow- ers, duties, and liabilities of an executor or administrator, apply to a person to whom ancillary letters are granted, as prescribed in this article ; except those contained in title fifth thereof ; or where special provision is otherwise made in this article ; or where a contrary intent is expressed in, or plainly to be inferred from, the context. § 3703, Code Civil Proc. A domestic executor can be sued by a non-resident for his testator's debt. Hopper v. Hopper, 125 N. Y. 400, 404. Hence, so can the ancillary representative. Of course in such a case the rule limiting the rights of a non-resident to sue, obtain re- gardless of the character of the defendant. See discussion in Hopper V. Hopper, by Finch, J., at page 405. § 5. Prerequisites to ancillary letters upon foreign pro- bate. — -The following facts must be made to appear to the satis- faction of the Surrogate before he can issue ancillary letters testamentary or of administration with the will annexed : (a) That there has been probate within a foreign country, or another State or a territory of the United States. (5) Of a will of personal property. (c) That such will so made was proved in the proper court of the country. State or territory where it was executed or where the testator resided at the time of his death. In other words, a person relying on the decree of a foreign probate court admitting a will to probate, must prove that the steps necessary to enable the foreign court to acquire jurisdiction of the subject-matter and of the parties were duly had and taken according to the course of the law of the foreign jurisdiction. Matter of Law, 56 App. Div. 454 (headnote). The allegations of the petition must be definite and direct. The jurisdictional facts must not be left to inference, and the petition should be verified. Estate of Winnington, 1 Civ. Proc. Rep. 267. The jurisdiction of a Surrogate in this State to enter- tain an application for ancillary letters upon foreign probate depends first upon the existence within his jurisdiction of prop- erty belonging to the estate. See § 2476, Code Civ. Proc. ; Evoms V. ScJioonmaker, 2 Dem. 249, Rollins, Surrogate. So, where the widow of a decedent applied to the Surrogate of New 47 738 SUKEOGATES' COURTS. York County for ancillary letters of administration on his es- tate, and it was made to appear merely that she had been ap- pointed administratrix of his estate by the Orphans' Court of the District of Columbia, which was the place of the decedent's domicile at the time of his death, and it appeared that all the assets of the estate were in her possession in the city of Wash- inffton in the District of Columbia, it was held that there was no occasion for the granting of ancillary letters. Another basis for assuming jurisdiction is that the decedent whose estate is sought to be administered in this State under the ancillary let- ters was indebted to creditors within the State. This rule is based upon the principle above stated that the chief object of the provision in our statute as to ancillary administration of the assets here is, as it has always been, to preserve and protect the claims of creditors residing in this State. Moyer v. Weil, 1 Dem. 71. So Surrogate Eollins held in a case before him {Henrich- son V. Ladd, 2 Dem. 402, 406), that the failure in the petition for ancillary letters to allege indebtedness to creditors in this State was fatal to its effectiveness considered as an application for letters ancillary, citing Estate of Winnmgton, 1 Civ. Pro. Rep. 267. But the Appellate Division in the First Department sustained a petition as containing sufficient jurisdictional alle- gations in the following case {Taylor v. 8yine, 17 App. Div. 517) : " The deceased, Eliza Kenner, left a last will and testa- ment which was duly admitted to probate in the courts of Louisiana, the letters testamentary thereon were issued to the plaintiff in this action, and in August, 1896, an application was made to the Surrogate of the county of IS'ew York for ancillary letters upon a petition of the attorney of the plaintiff setting up the fact of the will ; that the decedent was at the time of her death a resident of Mobile in the State of Alabama ; that the will had been duly admitted to probate in Louisiana where the decedent left real estate and the said will was executed ; also the issuance of letters testamentary thereon and the exist- ence of personal property within this State. Attached to said petition were the will and proofs of execution, by which it appeared that the will in question was not executed in Louis- iana, but in Alabama." Van Brunt, P. J., in passing upon the question of jurisdic- tion said, "It is claimed that because of this fact the Surrogate had no jurisdiction to issue the letters, because by the provisions ANCILLARY ADMINISTEATIOK. 739 of the Code of Civil Procedure (§ 2695) ancillary letters can be granted upon a foreign will only where such will has been admitted to probate within a foreign country or within the State or Territory of the United States where it was executed, or where the testator resided at the time of his death. We are of opinion that the petition presented to the Surrogate contained adequate allegations to confer jurisdiction upon him. Having acquired such jurisdiction, his judicial action cannot be inquired into collaterally as is attempted to be done in the case at bar. Where such papers are presented as call upon the Surrogate to determine the question of jurisdiction, his decision that he has jurisdiction and his action in accordance with such decision cannot be questioned in a collateral proceeding." This decision was reversed, 162 N. Y. 513, on the ground that the petition contained a false allegation, evident from the transcript of foreign probate. It may be said, then, that if there are no creditors, and it so appears, the Surrogate may base jurisdiction on the assets in his county and on the foreign probate or ad- ministration. Where there are no creditors there need be no citation. § 6. What is sufflcient proof of the foreign probate. — Sec- tion 2695 requires that the petition for letters shall be accom- panied by " a copy of the will and of the foreign letters if any have been issued, authenticated as prescribed in this article." This refers to section 2704 which may properly be interjected at this point as it is fundamental to ancillary administration both under foreign probate and under foreign administration. This section is as follows : Paper recorded, etc., how authenticated. To entitle a copy of a will admitted to probate or letters testamentary or of letters of administration, granted in any other state or in any territory of the United States, and of the proofs or of any statement of the substance of the proofs of any such will, or of the record of any such will, letters, proofs or statement, to be recorded or used in this state as provided in this article, such copy must be authenticated by the seal of the court or officer by which or by whom such will was admitted to probate or such letters were granted, or hav- ing the custody of the same or of the record thereof, and the signature of a judge of such court, or the signature of such 740 StTRROGATES' COURTS. officer and of the clerk of such court or officer if any ; and must be further authenticated by a certificate under the great or principal seal of such state or territory, and the signa- ture of the officer who has the custody of such seal, to the effect that the court or officer by which or whom such will was admitted to probate or such letters were granted, was duly authorized by the laws of such state or territory to admit such will to probate or to grant such letters ; that the will, or letters, or records, the accompanying cot)y of which is so authenticated, is or are kept pursuant to those laws, by such court or by the officer who authenticated such copy ; that the seal of such court or officer affixed to such copy is genuine, and that the officer making such certificate under such seal of such state or territory verily believes that each of the sig- natures attesting such copy is genuine ; and to entitle any certificate concerning proofs accompanying the copy of the will or of the record so authenticated, to be recorded or used in this state, as provided in this article, such certificate must be under the seal of the court or officer by which or whom such will was admitted to probate, or having the custody of such will or record, and the signature of a judge or the clerk of such court, or the signature of such officer, authenticated by a certificate under such great or principal seal of such state or territory, and the signature of the officer having the custody thereof, to the effect that the seal of the court or officer affixed to such certificate concerning proofs is genuine, and that such officer making such certificate under such seal of such state or territory, verily believes that the signature to such certificate concerning proofs is genuine. To entitle a copy of a will admitted to probate or of letters testamentary or of letters of administration granted in a foreign country, and of the proofs or of any statement of the substance of the proofs of any such will or of the record of any such wiU, letters, proofs or statement to be recorded or used in this state as provided in this article, such copy must be authen- ticated by the seal of the court or officer by which or by whom such wih so admitted to probate or such letters were granted or having the custody of the same or of the record thereof and the signatiu'e of a judge of such court or the signature of such officer and of the clerk of such court or officer, if any ; and must be further authenticated by a certificate under the prin- cipal seal of the department of foreign affairs or the depart- ment of justice of such foreign country and the signature of ANCITiLARY ADMINISTRATION. 741 the officer who has the custody of such seal to the effect that the seal or officer by which or by whom such will was admitted to probate or such letters were granted was duly authorized by the laws of such foreign country to admit such will to probate or to grant such letters ; that the will, letters or rec- ords, the accompanying copy of which is so authenticated is or are kept pursuant to those laws by such court or by the officer who authenticated such copy and that the seal of such court or officer affixed to such copy is genuine, and that the officer making such certificate under such seal of the de- partment of foreign affairs or of the department of justice of such foreign country verily believes that each of the signa- tures attesting such copy is genuine and the seal of such de- partment of foreign affairs or department of justice of such foreign country and the signature of the officer having the custody of such seal shafi be attested by a United States consul and to entitle any certificate concerning proofs ac- companying the copy of the will, or of the record so authen- ticated, to be recorded or used in this state as provided in this article, such certificate concerning proof s must be similarly authenticated and attested. § STOl, Code Civil Proc. Amended by chap. 603 of 1897. In effect Sept. 1, 1897. The amendment of 1888 consolidated §§ 2704 and 2705, which were new provisions for the authentication of the papers, and re- constructed them in such a way as to conform the new section to the changes made by the same statute in §§2695, 2696 and 2703. The intent of this section is to afford to the Surrogate who is asked to issue the ancillary letters an authenticated certifi- cate of exemplification from which on principles of comity he may be enabled judicially to find that the will has been admitted to probate by a competent court. Care therefore should be taken that the exemplifications of both will and of letters should be in compliance with the requirements of the statute. Surro- gate Livingston {Matter of Hudson, 5 Eedf. 333) in a case where there was no exemplified copy of a judgment, decree, or order admitting the will to probate accompanying the petition, and where it appeared that under the laws of the State of Ifew Jer- sey, where the will had been proved, no such written judgment, decree or order is required, but that wills were admitted to pro- bate on the mere oral direction of the court, held that it was essential that that fact should appear in the certificates of ex- emplification of the will and in case the designated officials 742 STTBROGATES' COURTS. should refuse to certify to the fact it should be proved to the satisfaction of the Surrogate by the afl&davit of some person having knowledge of the laws of New Jersey. The learned Surrogate, also, held that it was essential that the will should be shown to have been admitted to probate by a duly constituted and competent court. It is not contemplated, however, that the papers to accom- pany the petition should include exemplification of the proofs upon the foreign probate. The statute contemplates not a pro- ceeding for probate here but merely the supplementing of the foreign probate upon satisfactory proof before the Surrogate of the authenticity of the foreign record. And so it has long been the rule that the genuineness and validity of the will itself are subjects which can only be inquired into at the place of pro- bate. Will of Esther Levy, 1 Tucker, 20. § 7. Where administration in tliis State need not be an- cillary. — Where there is no other application for domiciliary letters in this State and the foreign will is one which under sec- tion 2611 (see pages 41 and 332, supra) is entitled to pro- bate in this State, the application may be directly for probate of the will, if there was one, and for letters of administration vv^ith the will annexed, or even for letters testamentary in a proper case, and in such a case there is no necessity for making the administration an ancillary one. Surrogate KoUins passed upon this question {Hendrickson v. Ladd, 2 Dem. 402), upon an application by an administratrix with the will annexed for leave to mortgage, lease, or sell real property of her decedent. Her authoritj'^ to act represefltatively was called in question and in passing upon it the learned Surrogate held as follows: " Next comes the question whether the letters held by the petitioner warranted her in instituting this proceeding. Under the laws in force prior to the adoption of the Code, there can be no doubt, I think, that she would, in the absence of an ap- plication by a domiciliary executor or administrator, have been entitled to letters of administration with the will annexed, and that such letters would have been justly regarded as strictly local letters, more especially if there had been no domiciliary letters outstanding at the time of her application. That, in the absence of a claim by the foreign executor and administrator, letters could be issued under section 60, 3 Eev. Stat. 6th ed. p. 67, to the person entitled to letters of administration, with- ANCILLAKY ADMINISTEATION. 743 the will annexed, under the statute making provision with re- gard to domestic administration, and in the order of priority specified thereunder, and that such letters so issued would be principal and not ancillary letters seems to be recognized by section 34 of the Revised Statutes, 6th ed. p. 76, and by the following authorities : Isham v. Gibbons, 1 Bradf. 69, 76, 79 ; Russell V. Hartt, 87 N. Y. 18, 24 ; St. Jurjo v. Bunscomb, 2 Bradf. 105 ; Sullivanv. Fosdick, 10 Hun, 173, 180. Those provisions of the Revised Statutes relating to this subject, as well as chap- ter 403 of the Laws of 1863, which have some bearing upon it, were repealed by the General Repealing Act which ushered in the Code of Civil Procedure. The substance of the earlier pro- visions is adopted into and now forms part of section 2695 of the Code. This appears by comparison of the old and new statutes, and Mr. Throop, in his annotation to the section, de- clares that no substantial change was intended. " I find nothing in the language of section 2695 which de- clares an intention on the part of the legislature to prevent the issuance, under such circumstances as here appear, of letters of administration with the will annexed, conform- ing to the requirements of our statute with regard to the local administration. The practice existed before the enact- ment of the Code, and I do not think that the Code abol- ished it. " I hold, therefore, that the letters held by this petitioner warranted her in instituting this proceeding. " In case there appear, then, to be two original, or more prop- erly, independent administrations, one here, and one elsewhere, then the court will marshal the assets and dispose of them in such a way as to equitably discharge the claims against the decedent. § 8. Section 2695 further discussed -Section 2695 not only limits ancillary letters upon foreign probates to wills of personal property {Matter of Langbevn^ 1 Dem. 443), but it also requires that the testator shall be shown to have resided with- out this State at the time of the execution of the will, or at the time of his death. As this, therefore, is a jurisdictional fact it cannot be determined on affidavits in case it is put in issue. Accordingly it is proper for the Surrogate in such a case to order a reference to determine the fact as to the resi- dence of the deceased either at the time of his death or of the 744 surrogates' courts. execution of the will. Matter of Cmin, 1 Connoly, 117, 119, Ransom, Surr. § 9. Ancillary letters upon foreign grant of administra- tion.— Ancillary letters may also be granted m tiiis State upon a foreign grant of administration. Upon application by the party entitled, as hereinafter pro- vided, or by his duly authorized attorney in fact, made as prescribed in this article, to a sui-rogate's coui-t having juris- diction of the estate ; and upon the presentation of a copy, authenticated as prescribed in this article, of letters of admin- istration upon the estate of a decedent who resided, at the time of his death, without this state, but within the United States, granted within the state or territory where the dece- dent so resided ; or in cases where the decedent, at the time of his death, resided without the United States, upon the presentation to such surrogate's court of satisfactory proof that the party so applying, either personally or by such attor- ney in fact, is entitled to the possession in the foreign coun- try of the personal estate of such decedent, the surrogate's court, to which such copy of such foreign letters so authen- ticated or such proof is so presented, must issue ancillary letters of administration, in accordance with such application ; except in the following cases : 1. Where ancillary letters have been previously issued, as prescribed in the last section. 2. Where an application, for letters of administration upon the estate, has been made by a relative of the decedent, who is legally competent to act, to a surrogate's court of the state, having jurisdiction to grant the same ; and letters have been granted accordingly, or the application has not been finally disposed of. § 2696, Code Civil Proc. The application for ancillary letters upon foreign grant of administration differs, first of all, in that the application may be made by the duly authorized attorney in fact of the party entitled to receive such letters. It will be recalled that in re- gard to ordinary administration in chief the right to administer cannot be delegated in this way, but the person entitled in order of priority must either assert his right in person or yield to the next in order of preference. It has also been noted elsewhere that in regard to probate and the issuance of letters testamen- tary under a will, or of administration with the will annexed, ANCILLARY ADMINISTKATION. 746 a different rule was established by the Court of Appeals. Rus- sell Y. Hartt, 87 N. Y. 18. In this case the jurisdiction of a Surrogate was upheld to take the proof of a will of real and personal estate executed in Scotland by a citizen of this State temporarily residing in that country, in accordance both with the foreign law and with our own, and to issue letters to one appointed by a power of attorney, duly and properly executed, to present the will for probate and to ask for and receive letters and to take possession of and to administer upon the estate. Opinion of Finch, J., at pages 21 and 22. § 10. Same subject. — The second peculiarity to be noted in regard to the granting of ancillary lettters upon foreign grant of administration is in the exceptions noted in section 2696. They are, first, that such letters inay not be granted where they have already issued upon an independent application under the previous section, to wit, upon foreign probate. The second exception is, and it is one on which the courts have been called upon to pass, where applications for domiciliary administration have already been made within the State. In regard to this it is immaterial, so far as the Surrogate's discretion is concerned, as to whether letters shall have actually been issued or whether the application is still pending undetermined. From the cases that have arisen in this connection, it appears that the Surro- gate is not limited in the exercise of his discretion, by the fact that either the application for ancillary or that for local letters was made first. It is clear in the first place that exception two in section 2696 is not mandatory upon the Surrogate in either direction. In a case (Lussen v. Timmerman, 4 Dem. 250) where a daughter of an intestate, dying in New Jersey and leaving certain personal property in the county of New York, filed a petition for administration upon the estate here, subsequent to which a son of the decedent procured letters of administration in chief in the State of New Jersey and thereafter filed a peti- tion for ancillary letters with the New York Surrogate, the lat- ter [Rollins] held that on the one hand, since the exception provided for in section 2696 existed in the case at bar, the Sur- rogate had power to grant the daughter's application despite the application for letters ancillary (citing Weed v. Waterhury, 5 Redf. 114, Calvin, Surr.), and that he had on the other hand in the exercise of his discretion the right to grant the petition for letters ancillary despite the pendency of the other. Id., 746 SUEBOGATES' COUBTS. page 252. It is clear, therefore, that section 2696 is mandatory- only in its direction to the Surrogate to issue (except in one of the two casestherein specified) ancillary letters of adminis- tration when an application is made to him as provided in that and the followins: section. Surroo-ate EoUins held in a later case {Matter of Williams, 5 Dem. 292), where an application for original letters was already pending before him when the petition of a foreign representative (who was a domiciliary ad- ministrator of the estate of a decedent who died a resident of Tennessee leaving personal property in New York) for ancil- lary letters was presented to him, that section 2696 merely authorized the Surrogate to decline to grant letters ancillary in case of the pendency of an application by a relative of the dece- dent for local original letters of administration. § 11. Granting letters to one holding a power of attorney. — In addition to what has been already said in this connection, it must be added that the words " duly authorized attorney in fact " in section 2696, contemplate not only the proper execu- tion and the technical legal regularity of the power, as well as the proper authentication of the authority of the officer before whom it is executed to take the acknowledgment thereof, but also and chiefly contemplates that the power shall expressly indicate the desire of the foreign representative that the attor- ney in fact therein named is to apply for and receive ancillary letters and administer the ancillary estate. Consequently, a power of attorney, however regular as to form and execution, merely authorizing the applicant to wind up the business of the decedent or generally to settle his affairs, is not sufficient. Estate of Thompson, 1 Civ. Pro. Rep. 264. See also Ross v. Willett, 1Q Hun, 211. The case last cited was one where the applicant for ancillary letters showed himself to have acquired under regular judicial proceedings, known as " verification of heirship " in the province of Quebec in the Dominion of Canada the legal right to the possession of all the personal estate of the decedent, and had also certain powers of attorney under which the acts in question had been done, and his authorit}^ under vrhich had not been revoked or annulled in the province of Quebec, and it was held that his appointment as ancillary administrator by the Surrogate of the County of New York was regular and proper. See opinion of Follett, J., at pages 214, 215. AKCILLARY ADMINISTEATION. 747 § 12. To whom ancillary letters may be granted.— This is covered by section 2697, which is as follows : Where the will specially appoints one or more persons as the executors thereof, with respect to personal property situ- ated within tiie state, the ancillary letters testamentary must be directed to the persons so appointed, or to those who are competent to act and qualify. If all are incompetent, or fail to qualify, or in a case where such an appointment is not made, ancillary letters testamentary, or ancillary letters of administration, issued as prescribed in this article, must be directed to the person named in the foreign letters, or the person otherwise entitled to the property of the decedent, unless another person applies therefor, and flies, with his peti- tion, an instrument, executed by the foreign executor or ad- ministrator, or person otherwise entitled as aforesaid, or, if there are two or more, by all who have qualified and are act- ing ; and also acknowledged or proved, and certified, iu like manner as a deed to be recorded in the county, authorizing the petitioner to receive such ancillary letters ; in which case, the surrogate must, if the petitioner is a fit and competent person, issue such letters directed to him. Where two or more persons are named in the foreign letters, or in an instru- ment executed as prescribed in this section, the ancillary let- ters may be directed to either or any of them, without naming the others, if the others fail to qualify, or if, for good cause shown, to the surrogate's satisfaction, the decree so directs. § 2697, Code Civil Proc. This section defines the priority of right to ancillary letters. The persons entitled may be classified as follow^s, bearing in mind that the designation of all the persons so classified is lim- ited by their being competent to qualify and act. (a) One or more persons designated by the foreign testator's will to administer the property in this State. (5) 1, The foreign representative, 2, or persons otherwise entitled to the property of the dece dent, 3, or the persons designated by an instrument executed by either 5 1, or 5 2, to receive ancillary letters. Our statute recognizes, therefore, the testator's desire, v^here there is a foreign will, and will appoint under the ancillary 748 StJBEOGATES' COUEXS. letters the person designated by the testator. But, failing such designation, which is exceptional, it is the intent and spirit of our statute that the foreign representative or representatives, or his or their duly designated attorney in fact, shall receive the ancillary letters. Estate of Wise, 2Civ. Proc. Kep. 230, n., where due and timely application is made by them. See Mat- ter of Hanover, 3 Kedf. 91, 96. § 13. Same subject. — But it is manifest that if no foreign letters have yet been issued, and there is no person entitled to the property of the decedent, or no attorney in fact duly author- ized by such person entitled, then the application for adminis- tration in this State for ancillary letters must be on behalf of the person who would be entitled to letters under our statute in a case of domestic administration. Estate of Wise, 2 Civ. Proc. Eep. 230, n. ; Estate of Williams, 5 Dem. 292. This applies equally to ancillary letters testamentary, ancillary letters of ad- ministration c. t. a., or ancillary letters of administration. Id. § 14. Procedure — The procedure upon application for ancil- lary letters is defined by sections 2698 and 2699. Section 2698 refers to the petition and citation thereupon and is as follows : An application for ancillary letters testamentary, or ancil- lary letters of administration, as prescribed in this article, must be made by petition. Upon the presentation thereof, the surrogate must ascertain, to his satisfaction, whether any creditors, or persons claiming to be creditors, of the decedent reside within the state ; and, if so, the name and residence of each creditor, or person claiming to be a creditor, so far as the same can be ascertained. Unless such creditors shall file duly acknowledged waivers of the issuance and service of cita- tion, he must thereupon issue a citation, directed to each per- son whose name and residence have been so'ascertained, and also directed generally to all creditors, or persons claiming to be creditors, of the decedent. Any such person, although not cited by his name, may appear and contest the application, and thus make himself a party to the special proceeding. § 2698, Code Civil Proc. The contents of the petition have already been discussed ; it has been in that connection suggested that a failure to allege local indebtedness, i. e., indebtedness to creditors within the State may render the petition defective {Hendriokson v. Ladd, 2 Dem. ANCILLARY ADMINISTRATION. 749 402 ; Matter of Winnington, 1 Oiv. Proc. Rep. 267) as the pur- pose of the ancillary administration is the protection of New York creditors. But under section 2698, the applicant must set forth so far as they are ascertainable by him the names and residences of every creditor residing within the State ; the full names of all should be given. Estate of Thom,pson, 1 Civ. Pro. Kep. 264. Of course, if the applicant does not know the names of all the creditors, an allegation as to one would be sufficient, as would also be an allegation in the petition made upon infor- mation and belief that there were creditors of the decedent in the State or persons claiming to be such, and that their names and residences were unknown to the petitioner. This state- ment while applicable to the petition does not relieve the Sur- rogate of the necessity of ascertaining to his satisfaction the facts regarding siich allegations with a view to the issuance of the citation. That this is so, is apparent from the wording of the section which provides that the citation must not only be directed to each person whose name and residence shall have been so ascertained, " but also directed generally to all creditors or persons claiming to be creditors of the decedent." Any such person becomes a party to the special proceeding, though not cited by name, merely by his appearance therein. It has been , held, however, that where a foreign administrator makes an ap- plication under this section and alleges in his petition and proves to the satisfaction of the Surrogate that there are no creditors or persons claiming to be such within this State, letters may nevertheless properly issue to him and that without notice to the widow or other relatives of the decedent. Matter of Mc- Evoy, 3 Law Bulletin, 31. Surrogate's Court, County of New York. Petition for ancillary letters testamentary (or of administra- tion). In the Matter of the Appli- cation for Ancillary let- ters testamentary (or of administration) on the last ■wiU and testament of late of State of Deceased. To the Surrogate's Court of the County of New York .■" The petition of residing at State of 750 StTKEOGATES' COtJRTS. respectfully showeth : that your Petitioner is of said deceased. That said deceased was at the time of h death a resident of State of and departed this life in State of on the day of 188 leaving personal property within this county. That heretofore (i. e. on the day of 188 ) a will of personal property, made by said deceased, was duly admitted to probate by (or letters of administration of the goods, chattels and credits of said decedent were granted to your pe- titioner pursuant to decree duly made and entered by) (here specify the Court definitely) the same being a competent court having jurisdiction in the premises within the State of where the decedent so resided as aforesaid, and the said will was executed. That said will is filed and recorded (or said letters were duly recorded) in the the same being the proper ofHce therefor, as prescribed by the laws of said State of and the said wiU, with the proofs and the records thereof, remains in said court. That on the day of 188 letters testa- mentary upon the estate of said deceased were duly issued by said court to as execut named in said will. That an exemplified copy of the wHl, and of the judgment, decree or order so admitting the same to probate as aforesaid, and also of the said letters, {or of said letters of administration and of said decree granting the same), is hereto an- nexed. That petitioner has made diligent search as follows, to wit, by to discover whether any creditors or persons claiming to be creditors of the decedent reside within this State, and he is informed and believes that {here state the facts so asce7tai7ied) . That the amount of debts due or claimed to be due from the decedent to residents of this State is dollars or thereabouts, and does not ex- ANCILLARY ADMINISTBATION. 751 ceed dollars. And that the amount of per- sonal property in this State left by the decedent does not exceed in value dollars. That no previous application for ancillary let- ters has been made in this or any other Surrogate's Court of this State. Your Petitioner therefore prays that said Sur- rogate issue a citation according to law, record said exemplified copies, and issue thereupon an- cillary letters to upon h qualifying as prescribed by law Dated New York City, 188 Petitioner. (Verification.) Decree award- iugr ancillary letters testamen- tary. Note. Use this when original ex- ecutor does not apply in person, but designates one to apply in his stead. Present : Surrogate's Court Caption. Hon. Title, •} Surrogate. An exemplified copy of the (record of the) will of late of the ( of and State of ), deceased, and of the judgment (de- cree or order) of the court of within said (State), entered the day of 18 duly admitting the same to probate {and of letters testamentary issued thereon to the executor in said will named) having been filed in this court, on the day of 18 (together with an instrument duly executed by said executor, authorizing of No. Street, in to receive ancillary letters of administration with the will annexed, upon the estate of said (note) ; and the said having therewith presented to and filed in this court his duly verified petition, praying for a de- cree awarding to him (or to ) ancillary 752 SUREOGATES COXTKTS. Note. Or, And the names and residences of each creditor or person claiming to be a creditor, having been ascertained, and citations hay- ing issued di- rected to every such person and also directed generally to all creditors or per- sons claiming to he creditors of the decedent and (state vrhether any of such credi- tors appeared and were heard upon the return day). Note. Here note the closing provision of sec- tion 2701 as to pro rata payment where the dece- letters testamentai-y on said will (or, of adminis- tration with the will annexed, upon the goods, chattels and credits) of said deceased (and the Surrogate having ascertained, to his satisfaction, that there were no creditors or per- sons claiming to be creditors of the said dece- dent residing within the State of New York) ; Note. Now, on motion of attorney for said It is Adjudged and Decreed, that administra- tion with the will annexed, on the goods, chat- tels and credits, within this State, of deceased, be, and the same is hereby awarded to the said and that ancillary letters testa- mentary on the said will (or, of administration with said will annexed) issue to the said upon his taking and subscribing the statutory oath or affirmation, and executing, according to law, a bond, with sufficient sureties, in a penalty of dollars. Add in a proper case : And it is further Ad- judged and Decreed, that the said to whom ancillary letters (testamentary or of administra- tion as the. case may be) are hereby decreed to be issued, shall not transmit the money and other personal property of the decedent received by Mm after the letters are issued {or now in his hands in any other capacity) to in {the State, territory or country where the principal letters were granted) the principal executor {or administrator, etc.), under tiie said last will and testament of deceased, to be disposed of pursuant to the laws of said State, territory or country) until the further order of this court {or until he shall first have paid out of the moneys or avails of the property to be received by him under the ancillary letters the debts of the de- cedent due creditors residing within the State). {Note.) (Signature.) Surrogate. ANCILLARY ADMINISTRATION. 753 dent's debts ex- ceed the amount of all his pei'sunal property a p p 1 i- cable thereto, as ■well as provisions as to distribution am one; legatees or next to kin. The wiser prac- tice is merely to subject the ancil- lary executor to the further order of the court so as to afford reason- able time in which to ascertain the facts aud give the creditors oppor- tunity to apply for an order di- recting the pay- ment of their claims. If no precautionary provision is inserted in the or- der, it will be noted under sec- tion 2700 that un- der the ancillary letters he is war- ranted in trans- raitting the property to the State, territory or country of princi- pal administra- tion and must be allowed in his ac- counting for any amount of prop- erty so trans- mitted by hira at any time before he is directed to retain it. § 15. Same. — After the petition is filed and the citation is- sued and served, and the proofs of service thereof duly pre- sented on or before the return day, the subsequent procedure must follow the course prescribed as follows : Upon the return of the citation, the surrogate must ascer- tain, as nearly as he can do so, the amount of debts due, or claimed to be due, from the decedent to residents of the state. Before ancillary letters are issued, the person, to whom they are awarded, must qualify, as prescribed in article fourth of this title, for the qualification of an administrator upon the estate of an intestate ; except that the penalty of the bond may, in the discretion of the surrogate, be in such a sum, not exceeding twice the amount which appears to be due from the decedent to residents of the state, as will, in the surrogate's opinion, effectually secure the payment of those debts ; or the sums which the resident creditors will be entitled to receive, from the persons to whom the letters are issued, upon an ac- counting and distribution, either within the state, or within the jurisdiction where the principal letters were issued. § 3699, Code Civil Proc. This section states clearly the purpose of requiring that the creditors and the amount of their respective claims be definitely proved before the Surrogate ; and it is moreover to the advan- tage of the ancillary administrator that this be done ; for in the absence of satisfactory proof of this character he will be com- pelled to qualify in a bond for double the value of the property 48 754 SURKOGATES' OOUBTS. within this State which he is to administer. If, however, he can prove the amount of the debts due from the decedent to resident creditors the Surrogate may in his discretion require only a bond in a sum not exceeding twice the amount of such debts ; but if the debts of resident creditors equal an amount greater than the value of the assets of the decedent which the ancillary representative is to administer, then the bond should not in any case exceed double the amount of the assets within the jurisdiction. Evans v. Schoonviaker, 2 Dem. 249. It must be borne in mind that the security required in this State is ex- clusive of and supplemental to the security required of the administrator in chief in the foreign State or countr}'. The Court of Appeals has stated the rule in regard to the bonds of ancillary administrators with the reason for such rule in a recent case. Matter of Prout, 128 N. Y. 70. In that case, where the widow of a decedent who had received the letters from a probate court in New Jersey applied to the Surrogate of Kings County for ancillary letters in this State, the Surrogate made an order that ancillary letters should be granted to hel" on condition that she should give a bond with sureties to be approved by the Surrogate in a penalty of double the value of that part of the personal' estate of which the deceased died pos- sessed within the county of Kings. The Court of Appeals, by Andrews, J., in affirming this action of the Surrogate uses the following language : "If the Surrogate had power to impose, as a condition to the granting of letters ancillary, that the administratrix should give a bond to secure the whole fund which might come to her hands by virtue of such letters, the imposition of the condition was a discreet exercise of such power. The general rule in this and other States requires that the administrator should give security in double the value of the personal estate of an intes- tate before assuming the administration. The actual location of the personal estate or of the securities by which it is repre- sented, is not under our statute material in determining the amount of the bond in a case of purely domestic administra- tion, for the rule that personal property is deemed to follow the person of the owner, fixes the legal possession in the in- testate at his place of residence, wherever in fact the property may be. Where the administrator has properly qualified and assumed the administration in the State of the domicile, he is ANCILLARY ADMINISTRATION. 755 invested with the power to receive the debts owing to the intestate and take possession of the securities and give proper acquittances wherever the debtors or securities may be, whether within or without the State. But where the debtor or the se- curities are in a foreign jurisdiction, and are not voluntarily paid or surrendered to the administrator of the place of the domicile of the intestate, the courts of the foreign jurisdiction will not enforce the recovery of the debts or securities upon his application until he has procured ancillary letters or a new administrator has been authorized under the laws of the place where assets may be. It is unnecessary to enter into the reasons of this rule. They are familiar and the rule has been frequently recognized. See Parsons v. Lyman, 20 N. Y. 103 ; Desjpard v. Churchill, 53 id. 192 ; In re Hughes, 95 id. 55. § 16. Same subject. — The opinion continues : " The unques- tioned rule of the common law that the succession to and the distribution of the estate of an intestate is governed by the law of the domicile, makes security there taken on the granting of letters of administration covering the whole personal estate of the intestate, an adequate protection to all parties interested ; and where ancillary letters are applied for in another State or jurisdiction, there would not seetn to be any necessity that additional security should be required were it not for another principle almost universally recognized, that the claims of cred- itors living in a jurisdiction where ancillary letters are sought, are entitled to have their just right in the assets of the intestate secured by a proper bond as a condition of granting the appli- cation. To this end security is usually required to be given by the applicant for ancillary administration enforceable in the tri- bunals of the place for the protection of creditors therein resid- ing. The course of legislation in this State upon the subject of ancillary administration and the security required may be briefly stated. The Eevised Statutes enacted that " every person ap- pointed administrator " should give a bond in a penalty not less than twice the value of the personal estate of which the deceased died possessed. Provision was made for granting letters on the application of foreign executors or administrators where per- sons, not inhabitants of this State, shall die leaving assets here. Section 31. There was no provision exempting persons apply- ing for ancillary letters from the operation of the general rule 756 SXJREOGATES' COURTS. declared in section 4'2, and it would seem that they, as well as domestic administrators, were required to give a bond in a pen- alty twice the value of the property upon which administration was sought. Section 2699 of the Code of Civil Procedure undertook to define the practice on the application for ancillary administration, which was left much at large under the Kevised Statutes. In construing the section the various conditions to be provided for may justly be considered. There may be do- mestic creditors entitled to protection. The assets in this State may be less or more than sufficient to provide for the rights of citizens here. Or again there may be no creditors. Ancillary letters may become necessary to enable the administrator or executor to recover assets by hostile proceedings out of the jurisdiction where the principal letters were issued. It is con- tended on the part of the appellant that upon an application for ancillary letters under section 2699, no security can be required in any case, exceeding twice the amount of the claims of domes- tic creditors and that the discretion of the Surrogate is only to be exercised within this limit. It is evident that this construc- tion would in the present case defeat the general policy which requires an administrator to give adequate security for the whole estate which may come into his hands. The security given in New Jersey was limited to the sum of $5,000, double the value of the personal estate of the intestate in his actual possession there, taking no account of the much larger amount in this State, and this course seems to have the sanction of the New Jersey courts. Lewis v. Grognard, 17 N. J. Eq. 425. " The contention of the appellant, if sustained, would enable the administratrix to take into her possession $40,000 in securi- ties belonging to the estate, without any security except a bond not exceeding double the amount of the debt of $7,305, alleged to be due to Moses P. Prout. It may be that the primary pur- pose of section 2699 was the protection of domestic creditors. The citation is required to be issued to creditors only. Sec- tion 2698. The legislature may have assumed that proper and adequate general security would be exacted by the law of the place of the principal administration. But although the lan- guage of section 2699 is vague, we think it is capable of a con- struction which will subserve the general policy of the law. The legislature in this section first declares a general rule, that before ancillary letters are issued, the person to whom they are ANCILLARY ADMINISTRATION. 757 awarded must qualify as provided in the fourth article of the title for the qualification of an administrator upon the estate of an intestate. Referring to the fourth title it is found that sec- tion 2667 prescribes as one of the acts to be done by an admin- istrator, to qualify him for the office, that he shall execute a bond in a penalty not less than twice the value of the personal propert}'^ of which the intestate died possessed, subject to cer- tain exceptions, one of which is that with the consent of all the next of kin of the intestate, the bond may, upon notice being given to creditors, be limited to twice the amount of their debts. The exception in section 2699, was we think intended to give the Surrogate a discretion to modify the general rule declared in the preceding clause and to accept a bond less in amount than that prescribed in ordinary cases of administra- tion, if by reason of adequate security having already been given, additional security for the protection of the general in- terests was not in his judgment required, or where the next of kin had consented to waive security, and in a case of domestic creditors where their protection was the only interest involved, to prescribe a limit beyond which security should not be ex- acted." § 17. Same subject. — So in a case where an ancillary admin- istrator had been appointed in "Westchester County of an es- tate which upon their appointment was shown not to exceed $100 in value, and the ancillary administrator qualified by giv- ing a bond of $120 or double the amount of the only known debt, and subsequently a person claiming to be a creditor to the extent of $240, came in and applied for an order requiring such ancillary administrators to give an increased bond in a penalty of $600, it was held by Surrogate Coffin, her claim being disputed : first, that the validity of her claim could not be tried by him, but that for jurisdictional purposes her petition must be deemed sufficient to entitle her to make the application ; but second, that notwithstanding this, her application must be de- nied as the Surrogate was without power to exact a bond in a penalty in any event greater than twice the value of the assets in the State. Ooran's Estate, 23 N. Y. Supp. 766. The Sur- rogate observed, " It would be absurd to hold that the legisla- ture intended that where the amount of the assets was only $100, and the amount of the debts $5,000, the executor should give a bond in the penal sum of $10,000, .... the only object 758 surrogates' courts. of the bond here is to secure the creditors to the extent of the value of the assets." The foreign court is expected to exact security based upon the value of the estate at large ; with that the New York courts have nothing to do. In fixing the bond of the ancillary administrator, they are only called upon to pro- tect local creditors. Matter of McEvoy, 3 Law Bulletin, 31. While, as has beeu indicated, the Surrogate will not try the validity of a claim upon which a creditor bases his application or right to be heard upon the amount of the bond of the ancil- lary administrator, on the other hand the creditor must at least prima facie establish his claim. The Surrogate is required by section 2698 to ascertain to his satisfaction who are the cred- itors residing in the State and the amount of the debt claimed to be due. If a creditor in his application does not satisfy the Surrogate as to the amount of his claim, or as to the fact that he is a creditor, he ma}' properly ignore such a claim if it be controverted by the ancillary administrator. Thus Surrogate Rollins {Matter of Mnsgrave, 5 Dem. 427) disregarded the claim of a petitioning creditor on the ground that on the papers pre- sented to him it was not shown that the claim was probably enforceable, but on the contrary that it would surely be defeated ultimately unless further evidence in its support should be pre- sented ; and that while if there were such further evidence he would examine it upon the application made, in its absence the application would have to be denied. Id., at page 428. § 18. Relation of ancillary administrator to administrator in chief. — Section 2700 further emphasizes the subordinate character of an ancillary administrator and is as follows : Persons acting under ancillary letters must transmit as- sets. The person to whom ancillary letters are issued, as pre- scribed in this article, must, unless otherwise directed in the decree awarding the letters ; or in a decree made upon an accounting ; or bv an order of the surrogate, made during the administration of the estate ; or by the judgment or order of a court of record, in an action to which that person is a party ; transmit the money and other personal property of the dece- dent, received by him after the letters' are issued, or then in his hands in another capacity, to the state, territory, or coun- try, where the principal letters were granted, to be disposed of pursuant to the laws thereof. Money or other property, ANCILLARY ADMINISTKATION. 759 SO transmitted by him, at any time before he is so directed to retain it, must be allowed to him upon an accounting. § 3700, Code Civil Proc. By section 2701 the Surrogate is given power however to limit the ancillary administration in this regard. The sections must be discussed together. Section 2701 is as follows : The surrogate's court, or any court of the state, which has jurisdiction of an action to procure an accounting, or a judg- ment construing the will, may, in a proper case, by its judg- ment or decree, direct a person, to whom ancillary letters are issued as prescribed in this article, to pay, out of the money or the avails of the property, received by him under the ancil- lary letters, and with which he is chargeable upon his account- ing, the debts of the decedent, due to creditors residing within the state ; or, if the amount of all the decedent's debts, here and elsewhere, exceeds the amount or all the decedent's personal property applicable thereto, to pay such a sum to each creditor, residing within the state, as equals that cred- itor's share of all the distributable assets, or to distribute the same among legatee or next of kin, or otherwise dispose of the same, as justice requires. § 3701, Code Civil Proc. The General Term of the First Department in discussing these sections {Smith v. Second National Bank, 70 Hun, 357, 359, Van Brunt, P. J.), observes : " It appears, therefore, by section 2700 that there is only one duty which an ancillary administrator is to perform, viz., that he must, unless otherwise directed, in the manner provided for in the section, transmit the money and other personal property of the decedent received by him after the letters are issued, if then in his hands in another capacity to the State, territory or country where the principal letters were granted, to be disposed of according to the laws thereof. This is his first and primary duty, and the provision is mandatory. He must transmit the same unless otherwise directed in decree awarding the let- ters, or in a decree made upon an accounting, or by an order of the Surrogate made during the administration of the estate, or by the judgment or order of a court of record in an action in which the ancillary administrator is a party. " Then by section 2701 power is given to the Surrogate's 760 surrogates' courts. Court, or any court of the State which has jurisdiction of an action to procure an accounting, or a judgment construing a will, by its judgment or decree, to direct the person to whom the ancillary letters are issued to pay out of the money or avails of the property received by him under the ancillarj' letters, and with which he is chargeable upon his accounting, the debts of the decedent due to creditors residing within this State. And that is all. Having done that, section 2700 becomes operative again, and he is bound to transmit the balance, if any, to the State, territory or country where the principal letters were granted, to be disposed of pursuant to the laws thereof." The duty to transmit arises only after the preliminary work of local administration is performed. Smith v. Second Nat. Bank, 169 N. Y. 467, 471. Hence, section 2701 amplifies and does not limit the ordinary powers of the Surrogate's Court in this con- nection. Ihid. % 19. Same subject The provisions of section 2702 already quoted do not affect the two prior sections. It is perfectly manifest that it was not the intention of section 2702 to repeal any of the restrictions or requirements contained in sections 2700 and 2701 and reading these sections together it seems to be ap- parent, that the only duty of the ancillary administrator is to transmit the assets, unless he is directed by express decree to retain some portion of the same for the payment of debts due to resident creditors. Smith v. Second National Bank, 70 Hun, 357, 360. It is clear from the adjudicated cases that the Surrogate has discretion whether or not to make the direction referred to. See Parsons v. Lyman, 20 N". Y. 103 (repeatedly cited) ; Mat- ter of Hughes, 95' N. Y. 55 ; Matter of Fitch, 160 JST. Y. 87, 96. On the one hand there is the willingness of our courts that the foreign jurisdiction of original administration should direct distribution even though the policy of the foreign State or country may permit bequests invalid under our laws. Despard V. Churchill, 53 IST. Y. 192. On the other hand there is the in- tent of the statute and the power vested in the Surrogate to retain local assets to pay local debts. Matter of Hughes, 95 N". Y. 55. The ancillary administrator does not by reason of the fact that his administration is based upon a foreign probate or administration acquire any immunity from the control which the Surrogate has over all administrators to whom he has issued ANCILLARY ADMINISTRATION. 761 letters, and a Surrogate accordingly, if limitations upon the powers of the ancillary administrator have not been incorpo- rated in the decree granting letters may at any time make an order with respect to the retention within the State of the assets in the hands of the ancillary administrator. So the Surrogate has power at any time to compel an accounting by an ancillary administrator. Duffy v. Smith, 1 Dem. 202. But it follows from the nature of his administration that he is only liable to account for assets in this State, that is for the property he holds as ancillary administrator. See Lynes v. Coley, 1 liedf. 405, Charles P. Daly, Acting Surrogate. " The accounting of the executor here is to be carried no further than may be necessary to enable our own citizens to secure their claims out of assets situated within our own jurisdiction." /(?., page 407. Korean an ancillary administrator be compelled to account for property transmitted by him to the place of principal administration prior to the issuance of letters to himself. Lynes v. C'oley, 1 Redf. page 409. If after the issuance of letters to himself he shall have transmitted money or other property at any time be- fore he may have been directed by the Surrogate or by the judg- ment or order of a court of record in an action to which he was a party to retain it, he must be credited such transmitted assets upon his accounting. Section 2700. As to whether the courts of this State will proceed further than to direct the payment of debts, or, acting under the power conferred by section 2700, decree distribution among legatees or next of kin, is a question not of jurisdiction but of judicial discretion depending upon the circumstances of each particular case. Despard v. Ohurehill, 53 IST. Y. 192, 200, Folger, J. In Lynes v. Goley, supra, Charles P. Daly, Acting Surrogate, held that if creditors were not likely to be prejudiced he would decree the payment of a legacy out of assets situated within the jurisdiction of his court where the legatee resided. In the case of Despard v. Churchill, supra, the Court of Appeals held (at page 200) that while the courts of this State would not directly aid in carrying out a bequest which would be in violation of our statute law and contrary to a policy of which it is tenacious, yet they could not hold the bequest void when it was valid by the law of the State by which the disposition of the property is to be governed. In the case of Parsons v. Lyman, 20 N. Y. 103, where the Court of Ap- peals reversed 4 Bradf. 268, the court held where Connecticut 762 surrogates' courts. executors applied for ancillary letters in this State, and under such letters took into their possession the assets of the estate, and petitioned the Surrogate for a settlement of their account, the jurisdiction of the New York Surrogate was limited to taking the account of the ancillary administrators as to the assets collected by virtue of the authority granted by him. See fuU discussion in opinion of Denio, J., pages 112 to 122. See also Hopper v. Hopper, 125 N. T. 400, 405. § 20. Ancillary representative has no trustee powers. — It may be stated as a general rule that an ancillary administrator has no power ex virtute officii to perform any trust under the decedent's will. Bonilla v. Mestre, 34 Hun, 551. So where a testator, a resident of Cuba, left a last will and testament cre- ating certain trusts, under which letters testamentary were issued to the executors in Cuba, and they by a proper power of attorney designated one to apply to the Surrogate in New York County for letters of administration ancillary with the will an- nexed to administer the goods, chattels and credits of the tes- tator in said city, which letters were granted, the General Term of the First Department, Davis, P. J., held that the claim of such ancillary administrator that he had a right to retain cer- tain securities reduced to possession by him as ancillary admin- istrator, on the ground that the trust created by the will of the testator in respect of them had devolved upon him and must be executed by him as trustee was wholly without foundation. Ihid., at page 554. The court held that the question did not appear to have been previously raised, but observed, " "We ap- prehend courts will hesitate to construe the statutes in such a manner that the ancillary administrator with the will annexed can capture for himself any distinct trust created by a will which the nominated and duly qualified executors are still en- gaged in executing." The learned court might well have based its decision, the correctness of which cannot be doubted, in that particular case upon the ground, that the ancillary administra- tor being appointed under a power of attorney, could not by any stretch of legal imagination be deemed, by virtue thereof to be vested with any delegated right to administer a trust personally reposed by the testator in the persons by whom the specific power to ask for ancillary letters was given him. § 21. Surrogate's duty to transmit — If there are no cred- itors to pay or if aU have been paid and if no legatee or next ANCILLARY ADMINISTKATION. 763 of kin appears and applies for the retention of the funds in this State it would seem that the Surrogate would not be justified in making any order other than to transmit to the place of prin- cipal distribution. For example he would not be justified in refusing to direct such transmission on the ground that the principal administrator or executor was incompetent or inex- perienced ; that is a matter for the court of original adminis- tration alone to pass upon. See Matter of Conkling, 15 St. Rep. 748. § 22. When ancillary letters determine. — The ancillary letters depend for their continued validity upon the life of the original letters. It has even been held by the General Term of the Second Department {Matter of OUleran, 50 Hun, 399), that where the original letters testamentary upon which ancillary letters in this State were based were revoked in the State of California, that the ancillary letters deprived of the support of the original letters fell without an order for their annihilation, and that the only effect of an order by the Eichmond County Surrogate to revoke the ancillary letters would be to disincum- ber the records of his office. The court held that when the letters testamentary were called back by the California Court, the ancillary letters were thereby canceled and destroyed by operation of law. § 23. How far ancillary administrator bound by judgment of domiciliary courts. — In all cases of ancillary administration the court in this State will endeavor so far as is possible after protecting local creditors to co-operate with the foreign court having jurisdiction over the original administration so as to produce by a proper marshaling of the assets equality among all creditors of the estate. Lawrence v. Elmendoif, 5 Barb. 73 ; Accounting of Hughes, 96 JST. Y. 55. Section 2701, by the gen- eral words giving the Surrogate's Court power to direct the ancillary administrator to pay debts in whole or ratably or to distribute among legatees or next of kin " or otherwise dispose of the assets as justice requires " gives the Surrogate the broad- est discretion in following the rules which not only equity but comity recognize and require. And so the statute is not man- datory but leaves the question of distribution and transmission to the judicial discretion of the Surrogate or Court having juris- diction. This is the rule declared by Story, J., in the leading case of Harvey v. Richards, 1 Mason, 380, the doctrine of which 764 SUKItoGATKs" COURTS. case has been expressly affirmed by our Court of Appeals in Pa/rsms v. Lyman, 20 N. Y. 103, and Despard v. Churchill, 53 K Y. 192. This doctrine does not interfere with the general principle of law that personal property is distributable and that succession thereto is regulated by the law of the decedent's domicile. The courts of this State when ancillary administra- tion is granted, when decreeing distribution apply the law of the domicile unless such application will interfere with the rights of domestic creditors, or unless there is special provision otherwise made by law as specified in section 2694. See Mat- ter of Accounting of Hughes, 95 N. Y. 55, at p. 60. In the Hughes case the decedent was a resident of Pennsylvania where he died intestate. Soon after his death his brother was ap- pointed administrator of his estate, in this State, by the Surro- gate of Kings County. A week later an administrator of the property of the deceased was appointed in Pittsburg, Penn. There were no creditors in this State, but all the next of kin of the intestate, five brothers and sisters all resided in this State. On the application of the Kings County administrator for a final accounting, the foreign administrator presented a petition claim- ing the right to intervene as principal administrator and ask- ing for the transmission of the property to him for distribution under the Pennsylvania law. The Court of Appeals in revers- ing the decree of the Surrogate which granted his application, held that as it did not sufficiently appear that there were cred- itors to be paid in Pennsylvania, and as the next of kin were all residents of the State presumably consenting to distribution here, and as the transmission of the funds under such circum- stances to the Pennsylvania administrator would merely subject the assets to double commissions, it would be an idle show of courtesy to remit the funds to a foreign jurisdiction. . . . When the only efl:ect would be to deplete it by unnecessary charges and expenses to the prejudice of all the parties inter- ested." Opinion of Andrews, J., at page 63. § 24. Effect of section 3703 — Section 2702 must not be deemed to enlarge the powers of an ancillary executor or ad- ministrator with regard to his dealing with the funds in his hands beyond the plain intent of sections 2700 and 2701. Thus, where an ancillary administrator applied to a bank for a loan of $600, stating that he desired the loan for the purposes of the estate in anticipation of income and gave as collateral for the ANCILLARY ADMINISTRATION. 765 loan a $5,000 7% accumulated debt bond of the city of New- York, with his promissory note for the amount of the loan, and the bank upon the non-payment of the note, attempted to col- lect the bond in order to satisfy the debt and to sell the bond at public auction, — one who had been appointed ancillary ad- ministrator in the place and stead of the onj who negotiated the loan stopped the transfer of the bond and enjoined the sale by temporary injunction. In an action brought by the ancil- lary administrator to compel the delivery of the bond to him, the General Terra of the First Department in reversing the action of the trial court in dismissing the complaint, declared that the sole question involved in the appeal was as to the right of an ancillary administrator to pledge any portion of the as- sets which might come into his hands ; and in holding that he could not, the court observed, by Yan Brunt, P. J., " It is dif- ficult to see how, either for the purpose of transmission or even for the payment of debts, the administrator could possibly have any occasion to anticipate income. The only duty of the an- cillary administrator is to transmit the estate unless he is di- rected by express decree to retain some portion of the same for some purpose permitted under section 2701." Smith v. Sec- ond National Bank, 70 Hun, 357. § 25. Foreign executors and administrators. — It has al- ready been stated (see p. 734, ante ), that foreign executors or administrators have no representative status in our courts. The language of the decisions has been uniform (see cases cited in section 3), in effect, though variously expressed. It has been held that an administrator appointed in one State has no authority as such beyond that State. Ulster County Savings Inst. V. Fourth National Banh, 8 1^. Y. Supp. 162. And again that the remedy against a foreign administrator in his repre- sentative character to charge the assets of his intestate for a debt or liability of the decedent, is governed by the law of the jurisdiction w^here he was appointed, and must be pursued in the legal tribunal, in the State or country where the decedent resided at the time of his death, and where administration was granted. Lyon v. Park, 111 K Y. 850, 355, citing Story's Conf. of Laws, § 513; Schouler on Executors, § 173; Petersen v. Chemical Banh, 32 N. Y. 21 ; Hadenherg v. Hadenherg, 46 Conn. 30. See Ferguson v. Harrison, 27 Misc. 380, hold- ing that the rule that a foreign executor cannot be sued here T66 surrogates' courts. is not altered by the fact that there are assets of the decedent in his possession here. But this general rale that foreign rep- resentatives cannot sue or be sued in this State and acquire all their rights from, and owe their responsibilities to, another ju- risdiction is not without its limitations. The Court of Appeals has distinctly confined it to claims and liabilities resting wholly upon the representative character. Johnson v. Wallis, 112 N. Y. 230, 232. In Lawrence v. Lawrence, 3 Barb. Ch. 74, the rule was declared to be applicable only to suits brought upon debts due to the testator in his lifetime or based upon some transaction with him, and not to operate so as to prevent a for- eign executor from suing in our courts upon a contract made with him as such executor. Consequently if he can sue upon such a contract, he may be sued upon it. So in one of the cases cited above (Petersen v. Chemical Bank), a foreign executor sold an obligation of the estate and his assignee sued upon it, and the action was sustained on the ground that the title of the foreign executor was good and he could transfer it, and while he could not have sued upon it his assignee was not pre- vented. So if foreign executors are owners of a judgment which they can sell they can also contract for its sale ; if they do so contract they are liable upon such contract and it can be enforced against them because they made it. But the contract does not derive its existence from any act or dealing of the tes- tator. See Johnson v. Wallis, supra. § 26. Same. — In view of the general application of the rule above stated the natural expedient has been resorted to, of suing the foreign executor in this State, not as an executor but individually. Thus in a recent case {Collins v. Stewart, 2 App. Div. 1st Dept. 271), an action was brought by the widow of a New Jersey decedent testator against the IS'ew Jersey executor in this State, but not expressly in his repre- sentative capacity, to recover certain securities claimed to be- long to the plaintiff individually under a certain instrument purporting to create a trust in her favor to secure her against loss by reason of the testator having pledged certain of her bonds as security for his personal note. The defendant set up his appointment as executor in New Jersey and claimed his right to recover the securities (which had been brought to the city of New York subsequent to the decedent's death, by the plaintiff's legal advisor) and remove them to the State of New ANCILLARY ADMINISTKATION. 767 Jersey and to administer them in the regular way through the Orphans' Court having jurisdiction over him. The Appellate Division, Judge Barrett writing the opinion, reversed the judg- ment entered upon a referee's report which directed the de- fendant individually to deliver the securities in question to a receiver. The court observed, first, that the mere fact that the defendant was not sued in his representative capacity was not conclusive, the rule being that if the averments in a com- plaint show that the cause of action devolves upon or exists against a party in his representative capacity the action will have a representative character despite the fact that the party sues or is sued individually. Citing Beers v. Shannon, 73 N". Y. 292 ; Patterson v. Copeland, 52 How. Pr.- 460. Second, that the action could not be maintained against the defendant in- dividually, as he was a mere depositary of the securities as if he were a safe deposit company. In such a capacity, no judgment could be rendered against him except to deliver the property to whomever was legally entitled to it, and he could not be required to apply it equitably. Third, that considering the action as one against the estate the New York court was with- out jurisdiction. See discussion of MoN'amara v. Dwyer, 7 Paige, 239 ; Brown v. Brown, 1 Barb. Ch. 189, at pages 281 and 282, opinion of Barrett, J. Fourth, that the limitation on this rule indicated by the cases discussed, namely, that a New York court will interfere to call a foreign executor to account only to prevent a failure of justice, while broad enough to cover any case where a failure of justice will result from a refusal to exercise jurisdiction, nevertheless "this failure of justice must mean failure of justice of the appropriate forum. " And the court declares, " It is the latter principle which underlies the rule, and which is the foundation of the jurisdiction asserted by the cases. The policy of the law is, that estates of dece- dents shall be settled as far as possible in one forum, not in a number. " It is only where facts appear showing that the orig- inal forum will be unable to perform the duty incumbent upon it, that the courts of this State will intervene. They do so to assist, not to embarrass, the original forum ; and facts must be adduced bringing the exception into play. § 27. Same subject. — The intimation in the opinion above quoted, that the assignees of a foreign executor or administra- tor could sue where his assignor could not, states a well settled. 768 surrogates' courts. rule. Foreign executors and administrators may assign claims in their own jurisdictions to residents in this State qualified to sue. Guy v. Craighead, 6 App. Div. 1st Dept. 463, citing Petersen v. Chemical Bank, 32 N. Y. 21. Even guardians of infants may do the same if their assignment is sufficient to pass legal title at the place where it was made. Similarly our courts will recognize the foreign executor as the personal representa- tive of a decedent mortgagee and will sustain a satisfaction piece executed by him in that capacity as sufficient to discharge from the record a mortgage given to his testator. The facts showing a probable failure of justice if the New York courts should refuse to assume jurisdiction against a foreign executor are pretty clearly defined and limited ; they relate chiefly to cases where the foreign executor is shown to be wrongfully using or misapplying the estate funds, or to have wrongfully removed them from the place of original jurisdiction, or to have himself removed therefrom ; or where the foreign representa- tive is shown to have squandered the estate in a foreign juris- diction and the local creditors might be without remedy or without adequate remedy in case he was allowed to remove assets in this State to the place of original jurisdiction. See cases above cited. A failure of justice may result from mis- conduct on the part of the representative other than misappro- priation of assets ; notably from a wrongful refusal to submit himself to the jurisdiction of the courts of the State which granted him letters. Collins v. Stewart, supra, at page 283. So Chancellor "Walworth {Brown v. Brown, 1 Barb. Ch. 189) while deciding that a suitor was not necessarily under all cir- cumstances confined to the original forum, held that neverthe- less in exceptional cases the applicant for relief must show that by some act of the foreign representatives in removing their persons or property from that jurisdiction any remedy which he might undertake to pursue there would be. fruitless. See also Bischoff v. Engel, 10 App. Div. 240. But it is manifest that suits of this character are never maintained where there are no assets in this State, and suits in relation to assets situate in a foreign jurisdiction must be against the administrator there. Molyolce v. Union Mutual Life Ins. Co., 84 N. Y. 648 ; Lyon v. Park, 11 1 N. Y. 350. The acts of a foreign representa- tive however, apart from his status as a suitor, may be perfectly valid if done within his representative rights. In addition to ANCILLARY ADMINISTRATION. 769 the cases above referred to it has beea held, that a foreign ad- ministrator of the beneficiary of a fund deposited' with a •New- York bank had power to demand payment of the bank, and if payment were made his discharge in his representative capac- ity would be efifectual. Schluter v. Bowery Savings Bank, 117 N. Y. 125, 129, citing Pa/rsons v. Lyman, 20 N. Y. 103 ; Peter- sen v. Chemical Bank, 32 N. Y. 21 ; In the Matter of the Estate of Butler, 38 N. Y. 397 ; Wilkins v. Ellett, 9 Wall. 740. Sim- ilarly the right of a foreign administrator to assign a mortgage upon property in this State and the validity of such assignment has been upheld. Smith v. Tiffany, 16 Hun, 552. This how- ever has been held to be limited in case there is a domestic ad- ministrator ; in such a case it has been held that the foreign administrator cannot discharge a mortgage upon the non-resi- dent's property within this State as against the domestic ad- ministrator. Stone V. Scripture, 4 Lansing, 186. In the absenc'e of New York creditors, a foreign representative collecting the debts due to his decedent in the State of New York can pro- tect those who pay such debts to him by liis receipt, for it is the duty of the administrator of the domicile to exercise due diligence to recover personal property when beyond the juris- diction of the State and collect debts owing to the decedent by non-residents; and for his failure in this regard, he may be charged in the settlement of his accounts. Moms v. German Samings Bank, 73 App. Div. 524, 528, citing Parsons v. Lyman, 20 N. Y. 70 ; Schultz v. Pulver, 11 Wend. 361 ; Matter of Bxitler, 38 N. Y. 397. This case reversed the Appellate Term (38 Misc. 134), which held the savings bank liable to the New York administrator, although without notice of his appointment the bank had previously paid to the New Jersey administrator the balance due his intes- tate. The court below had held that if New York letters had not been actually issued in this State when the defendant paid over the deposit, the defendant's liability would have been dis- charged, in spite of the fact that a foreign representative can- not enforce such a claim in this State. The Appellate Division, however, held that as the foreign administrator had title to the personal property of the intestate wherever situated, the succession to which was governed by the law of domicile {Mat- ter of P rout, 128 N. Y. 70), the voluntary payment made to 49 770 him, within or without the Sttate by a non-resident debtor, dis- charged the indebtedness. The court pointed out that it is only on grounds of public policy and to protect home creditors that a foreign administra- tor or executor is not permitted to maintain an action to re- cover property located here or to enforce the payment of an indebtedness owing to the intestate by a resident of our State. He may, however, assign the claim and his assignee may re- cover the property or collect the indebtedness by an action in this State. Maas v. German Savings Bank, supra, page 527, citing, Toronto General Trust Co. v. C. B. <& Q. R. R. Co., 123 N. T. 37, J:7 ; Petersen v. Chemical Bank, 29 How. Pr. 240 ; 32 JST. Y. 21 ; Middlebrook v. Merchants' Bank, 3 Keyes, 135; McNtolta v. Huntington, 62 App. Div. 257, 258. See also Mabon v. Ongley EUc. Co., 156 N. Y. 196, 201. In Taylor v. Syme, 162 N. Y. 513, 518, it is said that where there are no local creditors the rule forbidding the foreign ex- ecutor or administrator to sue in this State has little force, but nevertheless still obtains. In the Maas case the court distin- guished the case of Stone v. Scripture, supra, on the ground, that in that case it was manifest that the parties were aware of the appointment of the domestic administrator ; and where there is a local administrator and a foreign administrator both claiming the right to collect a debt owing to the decedent by a debtor residing here, the debt must be paid to the domestic and not to the foreign administrator. Lavyrence v. Townsend, 88 N. Y. 24. But if without knowledge of the appointment of a domestic administrator or of facts and circumstances which would lead a prudent man to inquire whether one had been appointed, the local debtor pays the foreign domiciliary admin- istrator who is vested with the title, the debt is discharged. It seems hardly necessar}^ to repeat that a non-resident who has been appointed executor or administrator of art estate in this State is not a foreign executor within the meaning of the law. His non-residence will not affect his accountability to the Surrogate who appointed him. His application for letters by which he assumes to administer an estate subjects him to the jurisdiction and direction of the court. Surrogate Calvin ex- tended this rule so as to hold that personal service of a citation without the limits of this State upon a non-resident executor ANCILLARY ADMINISTRATION. 771 holding letters from this court was valid. Stevens v. Stevens, 3 Redf. 507. § 28. The ancillary administration and the transfer tax. —By section 229 of the Tax Law, chapter 908, Laws, 1896, it is provided that " every petition for ancillary letters testamen- tary or ancillary letters of administration made in pursuance of the provisions of article 7, title 3, chapter 18, Code of Civil Procedure, shall set forth the name of the county treasurer or comptroller, as a person to be cited as therein prescribed ; and a true and correct statement of all the decedent's property in this State and the value thereof ; and upon the presentation thereof the Surrogate shall issue a citation directed to such county treasurer or comptroller; and upon the return of the citation the Surrogate shall determine the amount of the tax which may be or become due under the provisions of this ar- ticle ; and his decree awarding the letters may contain any pro- vision for the payment of such tax or giving of security therefor which might be made by the Surrogate if the county treasurer or comptroller were a creditor of the decedent." The form of this affidavit will be found in the chapter on Transfer Tax Procedure, chapter V, part YI, post, under sec- tion 28. § 29. Letters on estates of American citizens dying in foreign countries. — The provisions of section 2611 of the Code have already been discussed as to wills executed as prescribed by the laws of the State, or wills of personal property exe- cuted without the State and within the United States, the Do- minion of Canada, the Kingdom of Great Britain and Ireland as prescribed by the laws of the State or country where the wills were executed. There is another class of cases, namely this, of American citizens residing in foreign countries within the territorial jurisdiction of a United States consulate. We find the following provisions in the United States Revised Stat- utes, section 1709 : " Section 1709. It shall be the duty of consuls and vice-con- suls, where the laws of the country permit : " First. To take possession of the personal estate left by any citizen of the United States, other than seamen belonging to any vessel, who shall die within their consulate, leaving there no legal representatives, partner in trade, or trustee by him appointed to take care of his effects. 772 surrogates' courts. " " Second. To inventory the same with the assistance of two merchants of the United States, or, for want of them, of any others at their choice. " Third. To collect the debts due the deceased in the country where he died, and pay the debts due from his estate which he shall have there contracted. '■^Fourth. To sell at auction, after reasonable public notice, such part of the estate as shall be of a perishable nature, and such further part, if any, as shall be necessary for the payment of his debts, and, at the expiration of one year from his de- cease, the residue. " Fifth. To transmit the balance of the estate to the treas- ury of the United States, to be holden in trust for the legal claimant ; except that if at any time before such transmission the legal representative of the deceased shall appear and demand his effects in their hands they shall deliver them up, being paid their fees, and shall cease their proceedings." The United States has entered into treaties with most of the civilized powers, covering the rights of United States citizens dying in these various lands, and reference must be had to the terms of such treaties in determining whether under section 2611 the will, if any be left, is executed according to the laws of the country in which the testator dies a resident. For under the terms of most of such treaties, the consul is given the right to issue letters testamentary or of administration on the estates of United States citizens. I have been unable to find any case fully illustrating this situation, but I have from the attorneys interested, a case, un- reported, in Broome County. In that case the decedent was an American missionary living in Turkey, but died leaving a will attested by but one witness, such witness being a benefi- ciary thereunder, and being named the executor of the will. This designated executor applied to the consul for letters under the provision of the treaty with Turkey and having received the same reduced the estate in that country to possession, and upon his petition in Broome County, the Surrogate there held that it appeared from the United States statutes, taken in con- nection with the treaty with Turkey, that the United States Consular Court had jurisdiction. The adjudication by the Con- sular Court that the will was a valid disposition of personal property Avas held conclusive upon the Surrogate disregarding ANCILLARY ADMINISTRATION. 773 the patent defective execution of the Avill. He further held that the jurisdiction being that of the United States, the recora of proceedings of the Consular Court, duly attested by that court according to section 2704 of the Code and duly certified by the Secretary of State of the United States was sufficient to authorize him to record the will and the proceedings had in the Consular Court, and he accordingly issued ancillary letters to one authorized to apply therefor by power of attorney from the executor named in the alleged will. There was no contest in this case and no coniiioting rights under the will, the decedent having left a child and a hus- band. Apart from the inquiry whether the will in question in that case did not upon its face show that it was not a valid will, the practice followed appears to be perfectly regular under the Code and under the United States Revised Statutes. CHAPTER VII. EXE0UT0E8 AND ADMINISTEATOES OF DECEASED EXECUTORS AND ADMINISTEATOES. ♦ § 1. Executor or administrator of a deceased executor or administrator The executor or administrator of a decedent who in his own lifetime was an executor or administrator has a double status, one in his distinctive representative capacity of his immediate decedent, and the other in respect to the estate of which his decedent was the representative. There is now no explicit statute which denies the right of an executor's exec- utor as such to administer on the first testator's estate. Prior to the General Repealing Act (chap. 2J:5 of the Laws of 1880), the Revised Statutes provided (part 2, chap. 6, title 2, sec. 17), " No executor of an executor shall as such be authorized to administer on the estate of the first testator." See Matter of Moehring, 154 IST. Y. 423. But it has been held {Matter of Allen, 2 Dem. 203, RoUins, Surr.) that the repeal of this pro- vision was not designed to efl'ect any change in the law of the State in this regard. This ruling was based upon the fact that sec. 11, title 3, chap. 8, part 3, was in force before the repeal and was not repealed thereby. That section provides, " An executor of an executor shall have no authority to commence or maintain any action or proceeding relating to the estate, effects, or rights of the testator of the first executor or to take any charge or control thereof as such executor." In regard, therefore, to the assets of an unadministered estate which come into the hands of the executor or administrator of a deceased executor or administrator, he may be said to be a mere tempo- rary custodian thereof pending the appointment of a successor- administrator or administrator with the will annexed. The Code of Civil Procedure protects the beneficiaries of the first decedent's estate by means of the provisions of section 2606 under which the executor or administrator of a deceased execu- tor, administrator, guardian or testamentary trustee, may be compelled to account or may voluntarily account for any of (774) EXECUTORS OF DECEASED EXECUTOES. 775 the trust property which is in his possession. The section is as follows : Where an executor, administrator, guardian or testamen- tary trustee dies, the surrogate's court lias the same jurisdic- tion, upon the petition of his successor, or of a surviving executor, administrator or guardian, or of a creditor, or per- son interested in the estate, or of a guardian's ward or the legal representative of a deceased ward, or a surety upon the official bond of the decedent, or the legal representative of a deceased surety, to compel the executor or administrator of the decedent to account, which it would have against the de- cedent if his letters have been revoked by a surrogate's de- cree. And an executor or administrator of a deceased executor, administrator, guardian or testamentary trustee may voluntarily account for the acts and doings of the de- cedent, and for the trust property which had come into his possession or into the possession of the decedent. And on the death, heretofore or hereafter, of any executor, admin- istrator, guardian or testamentary trustee while an accounting by or against him, as such, was or is pending before a surrvas proper for the Surrogate to require additional se- curity, leaving the question of title to be passed upon when the administrator should account. Upon proceedings to compel an executor to give a bond Petition. BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 907 or to give a new surety, the following precedents are sug- Surrogate's Court, County of Title, l To the Surrogate's Court of the County of The petition of of respectfully shows : I. That your petitioner is a person interested in the estate of late of deceased, being (here give status of petitioner, whether legatee under a will or next of kin of an intestate, specifying interest under which he has a right to make the a2}plication) , n. That letters {specifying whether testamen- tary or of administration) were issued by the Surrogate of the county of to of on the day of 18 III. Your petitioner further shows that on the day of the said . filed a bond in the office of the Surrogate of the county of executed by himself and by and as sureties thereon, which bond was in the penal sum of dollars and was conditioned for the faithful discharge by said of the trust reposed in him as such and for his obedi- ence to all lawful decrees and orders of the Sur- rogate touching the administration of the estate committed to him. IV. And your petitioner further shows that the said one of the above named sureties is now insufficient as a surety by reason of the following facts {here state facts showing insuffi- ciency, such as insoluency, etc.), {or state that the surety has removed or is about to remove from the state) or state that the bond is inadequate in amount stating the facts by reason of which it proves inadequate. V. And vour petitioner further shows that his rights as well as those of other persons inter- 908 SUKROaATES' COUBTS. ested in the estate of the above named decedent are insufficiently protected by reason of the facts above set forth, and your petitioner is entitled under sections 2597, 2598, 2599 of the Code of Civil Procedure to an order of the Surrogate requiring the principal in the said bond to give new {or additional) sureties (o?' a new bond in a larger penalty if the ease so requires) within a reasonable time, not exceeding five days, to be fixed by the Surrogate, and directing that in de- fault thereof his letters be revoked. Wherefore, your petitioner prays that the administrator {or executor) above named may be required by the Surrogate to give new {or additional) sureties on his said bond {or a new bond in the penalty of dollars) within such reasonable time, not exceeding five days, as the Surrogate may fix, or in default thereof, that he may be removed from his oflSce and the letters issued to him as aforesaid may be revoked, and that the said administrator (or execu- tor) as aforesaid, may be cited to show cause why the prayer of this petition should not be granted. (Signature.) (Verification.) Surrogate's Couit Caption. Present : Hon. Surrogate. Order. Title. On reading and filing the petition, duly veri- fied, of a person interested in the estate of the decedent above named, praying that administrator, etc., may be required to give new {or additional) sureties {or a new bond in a larger penalty) , or in default thereof that he be removed from his office and the letters BONDS OP BXECTJTOES, ADMINISTRATORS, ETC. 909 Note. In case of the occurrence of such default this order is not sufficient to ac- complish the re- moval of the executor or ad- ministrator, and a further decree must be made re- moving the delin- quent from office and revoking tlie letters issued to him. See §2599, C. C. P. The form of this decree may readily be adapted from those in chapter on revoca- tion of letters, varying practi- cally only in the recital of the facts leading to the making of the de- cree. heretofore issued to Mm be revoked ; and upon the return of the citation duly issued thereon to the said the administrator, etc. (or execu- tor), as aforesaid, and on reading and filing proof of the due service thereof upon the said and the said having appeared by his attorney, and the allegations and proofs of the parties having been heard and due consideration thereon having been had, and the objection set forth in said petition being found to be valid, and it satisfactorily appearing that one of the sureties upon the bond of said as ad- ministrator, etc. (or as executor), here state the facts alleged as an objection constituting insuffi- ciency of security, such as insolvency, or removal from the state, etc.) ; Now, on motion of attorney for the petitioner, it is Ordered, that the said give new (or ad- ditional) sureties upon his bond as administrator (or as executor) (or that he give a new bond in the penalty of dollars, with two or more sureties in the penal sum of dollars, ia the usual form, conditioned for his faithful dis- charge, etc., and that he file the same in the Sur- rogate's office) within days (not exceeding five) from the date of this order, or in default thereof that he be removed from his office and the letters issued to him be revoked. (Note.) § 26. Application for new sureties may be made by the former sureties. — Section 2600 contains the statutory provi- sion whereby sureties on a bond may determine their liability for any future breach of the condition of the bond by the exec- utor, administrator, guardian or testamentary trustee. The section is as follows : Any or all of the sureties in a bond, taken as prescribed in this chapter, may present a petition to the surrogate's court, praying to be released from responsibility, on account of any future breach of the condition of the bond ; and that the prin- cipal in the bond be required to give new sureties and to render and settle his account, and that a citation issue to said 910 surrogates' courts. principal to attend on such application. The surrogate must thereupon issue a citation accordingly. § 2G00, Code Civil Proc. It must be borne in mind that the application by the surety under section 2600 cannot be consolidated with the application by persons interested, or creditors or relatives of an infant un- der section 2597. The proceedings are distinct and contem- plate distinct forms of relief. Bick v. Murphy, 2 Dem. 251. It has been held that under section 2600 any surety has a right to make this application whenever he shall desire to be released from responsibility on account of future acts or defaults of his principal. And it is consequently quite immaterial whether the surety has reasonable grounds for making the application or whether he is animated by unreasonable, petty or spiteful motives. See Lewis v. Watson, 3 Kedf. 43. Section 2601 protects the surety in respect to future liability to the extent that if a new bond is not filed so as to enable the Surrogate to make the decree releasing the petitioner from such future liability the letters of the principal may be revoked and the surety's liability for future acts determined in that way. The section reads as follows : Upon the return of a citation, issued as prescribed in the last section, if the principal in the bond does not file a new- bond in the usual form with new sureties to the satisfaction of the surrogate, the surrogate must make an order requir- ing said principal to file such new bond within such reason- able time, not exceeding five days, as the surrogate fixes. Should the principal file such new bond within the time fixed by such order, the surrogate must thereupon make a decree releasing the petitioner from liability upon the bond for any subsequent act or default of the principal, and requiring the principal to render and settle his account to and including the date of such decree and to file such account within a time fixed, not exceeding twenty days from such date ; otherwise he must make a decree revoking the delinquent's letters. § 3601, Code Civil Proc. The following official forms of the Surrogate's Court in "the County of Erie, may readily be adapted for use in any court in the State. BONDS OF EXECUTORS, ADMINISTRATOES, ETC. 911 Surrogate's Court, County of Erie, State of New York. Title •} To the Surrogate's Court of said County of Erie: The petition of of the of in the County of Erie, State of New York, respect- fully shows : That your petitioner is one of the sureties in the bond given by duly appointed by this Court as of and desire to be re- leased from responsibility on account of any fu- ture breach of the condition of said bond. Wherefore, J-our petitioner pray that may be released accordingly, and that the said be cited to show cause why should not give new sureties, and that such proceedings may be had herein as shall be proper and as the law re- quires. Dated this day of 189 (Verification.) Surrogate's Court Caption. Present : Hon. LOUIS W. MARCUS, Surrogate. Order for cita- In the Matter of the Estate 1 tion. of [ On reading and filing the duly verified petition of Ordered, that a citation issue requiring to show cause why he should not give new sureties as in the place of the peti- tioner who desire to be released. 912 SUEEOGATBS' COUETS. Surrogate's Court Caption. Present : Hon. LOUIS W. MARCUS, Surrogate. Order releas« in^ surety from future liability. In the Matter of the Estate ) of [ having heretofore presented duly verified written petition praying to be re- leased from responsibility, on account of any future breach of the condition in the bond given by duly appointed by this Court, as the and a citation having thereupon issued accordingly, and satisfactory proof of the due service personally of said citation on said having been filed. Now, upon the return of the said citation, the said having appeared in compliance there- with and having given new sureties in the place and stead of the surety petitioning to be released as aforesaid, to the satisfaction of the Surrogate, it is Ordered, Adjudged and Decreed, that a surety upon a bond made by as principal and by and the said as sureties on the day of 18 and filed in the office of the Surrogate of the county of on the day of upon the granting to said of letters of administration, etc. (or tes- tamentary, etc.), to the said by the Surro- gate of the county of be and he hereby is released from liability for any breach of the conditions of said bond or for any act or default of his said principal subsequent to the date of this decree. §27. When bond may be prosecuted. — The sections of chapter 18 referring to the prosecution of official bonds in the Surrogate's Court are sections 2607, 2608, 2609, 2610, which are as follows : BONDS OF EXECUTORS, ADMINISTEATORS, ETC. 913 Where an execution, issued upon a surrogate's decree, against the property of an executor, administrator, testa- mentary trustee, or guardian, has been returned wholly or partly unsatisfied, an action, to recover the sum remaining uncollected, may be maintained upon his official bond, by and in the name of the person in whose favor the decree was made. If the principal debt or is a resident of the state, the execution must have been issued to the county where he re- sides. § 3607, Code Civil Proc. Where the delinquent representative is «?ecease^, section 2606 is applicable (see next page), and the issue and return of execu- tion unsatisfied is not a condition precedent, to action against the sureties. Allen v. Kelly, 55 App. Div. 454. Successor may prosecute official bond. Where letters have been revoked by a decree of the surro- gate's court, the successor of the executor, administrator, or guardian, whose letters are so revoked, may maintain an action upon his predecessor's official bond, in which he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly adminis- tered by him ; and to the fuU extent of any injury, sustained by the estate of the decedent or of the infant, as the case may be, by any act or omission of the principal. The money, recovered in such an action, is regarded as part of the estate in the hands of the plaintiff, and must be distributed or other- wise disposed of accordingly ; except that a recovery for an act or omission, respecting a right of action, or other prop- erty, appropriated by law for the benefit of the husband, wife, family, or next of kin of a decedent, or disposed of by a will for the benefit of any person, is for the benefit of the person or persons so entitled thereto. § 3608, Code Civil Proc. Action on official bond when no successor is appointed. Where the letters of an executor or administrator have been so revoked, and no successor is appointed, any person aggrieved may, upon obtaining an order from the surrogate, granting him leave so to do, maintain an action upon the offi- cial bond of the executor or administrator, in behalf of him- self and aU others interested; in which the plaintiff may recover any money, or the full value of any other property, received by the principal in the bond, and not duly adminis- 58 914 subrogates' coxtets. tered by him, and to the full extent of any injury, sustained by the estate of the decedent, by any act or omission of the principal. The money recovered in such an action must be paid, by the sheriff or other officer who collects it, into the surrogate's court ; and the surrogate must distribute it to the creditors or other persons entitled thereto. The proceedings for such a distribution are the same as prescribed in title fifth of this chapter, for the distribution of the proceeds of a sale of real property. § 3609, Code Civil Proc. Application of this article to executors, etc., heretofore ap- pointed. The provisions of this article apply to an executor, admin- istrator, or guardian, to whom letters have been issued, and to a testamentary trustee whose trust has been created, be- fore this chapter takes effect ; except that it does not affect, in any manner, the liability of the sureties in a bond, exe- cuted before this chapter takes effect. § 3610, Code Civil Proc. Section 2606 which provides for an accounting by an execu- tor of a deceased executor, contains the following provision : "With respect to the liability of the sureties in, and for the purpose of maintaining an action upon the decedent's official bond, a decree against his executor or administrator, ren- dered upon such an accounting, has the same effect as if an execution issued upon a surrogate's decree against the property of decedent had been returned unsatisfied during the decedent's lifetime. So far as concerns the executor or administrator of decedent, such a decree is not within the provisions of section twenty-five hundred and fifty-two of this act. The wording of this section indicates that the issuing of an execution is not thereunder a condition precedent to the com- mencement of an action upon the official bond of a deceased executor, administrator or guardian. Van Zandt v. Orant, 67 App. Div. 70, 73 ; Allen v. Kelly, 55 App. Div. 454, 457; Mar- tin V. Rami, 32 App. Div. 602. § 28. Remedy on official bond — From the sections which have been quoted, it may be seen that an official bond may be prosecuted : BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 916 (a) By and in the name of the person in whose favor the decree was made upon which execution has been returned wholly or partially unsatisfied. (See § 30, below.) (5) By the successor of the executor, administrator, or guard- ian whose letters have been revoked. (See § 31, below.) Flanagan v. Fidelity da Deposit Co., 32 Misc. -121:. So an ad- ministrator de honis non may sue the surety of the original administrator for moneys of the estate received by him and never accounted for. Walton v. Walton, 4 Abb. Ct. App. 512 ; Dunne v. American Surety Co., 34 Misc. 584 ; S. C. on prior appeal, 43 App. Div. 91, 100. This right of action is not affected by fact that original administrator removed to another State, died there and left no personalty or personal representatives in New York State. Leave to sue is not nec- essary. S. C, 43 App. Div. 91, 95, and cases on p. 97. The administrator d. b. n. is the representative of the estate, and all rights of recovery for the benefit of the estate vest in him. Dunne v. Amer. Surety Co., 43 App. Div. 91, 94, 100. (c) By any person aggrieved, where no successor has been appointed to one whose letters have been revoked, in behalf of himself and all others interested. In the latter case, however, leave from the Surrogate must be obtained to bring the action. Dunne v. Amer. Surety Co., 43 App. Div. 91, 95. It has been held that where the bond is made to the people, it is proper to bring the action upon the bond in the name of the people specifying the person inter- ested in the recovery as relator. See People v. Laws, 4 Abb. 296. But in Dunne v. Amer. Surety Co., supra, Barrett, J., observes at p. 97, " Though the bond runs to the people, it so runs in form only, for the benefit of those to whom the right of action thereon is given by the statute." See § 32, below. § 29. Prosecuting the bond. — In respect to the procedure for prosecuting the sureties upon the bonds of executors or administrators in Surrogates' Courts, the Code seems to have made wide departures from the methods formerly in vogue. For example : sections 63, 64 and 65 of chapter 460 of the Laws of 1837, as amended by chapter 104 of the Laws of 1844, established the practice for the issuance of executions upon Surrogates' decrees directing the payment of moneys by exec- utors,°administrators and guardians. The sixty-fifth section of the act of 1837 provided that, if such an execution should be 916 STJEBOGATES' COURTS. returned unsatisfied, the Surrogate, upon due application, should assign the bond given by such delinquent officer to the person in whose favor the decree was made, upon which the execution was founded. These acts of 1837 and 1844 were both repealed by chap- ter 245 of the Laws of 1^0. In their place have appeared sections 2553, 2554 and 2607 of the Code. The last named section makes unnecessary an assignment of the bond, such as has been hitherto requisite. It provides that, " where an exe- cution issued upon a Surrogate's decree against the property of an executor, etc., has been returned wholly or partially unsatis- fied, an action, to recover the sum remaining uncollected, may be maintained upon his official bond, by and in the name of the person in whose favor the decree was made." Leave of the Surrogate need not, it would seem, be procured, before the com- mencement, under this section, of proceedings against sureties. By section 21, title 3, chapter 6, part 2, of the Kevised Stat- utes (3 Banks's 6th ed. 92), it was provided as follows : " In every case of revocation of testamentary letters or of letters of administration, for neglect or refusal to return an inventor^', and whenever directed hy the Surrogate, the bond given by such former executor or administrator shall be prosecuted, and a re- covery shall be had thereon, .... and the moneys collected thereon shall be deemed assets in the hands of the person to whom such subsequent letters shall have been issued." This provision was abrogated by the repealing act of 1880, and there appear, in its place, sections 2608 and 2609 of the Code. The former section declares that, " where letters have been revoked by a decree of the Surrogate's Court, the successor of the executor, administrator or guardian, whose letters are so revoked, may maintain an action upon the pred- ecessor's official bond," etc. The statute is silent as to the necessity of preliminarily ob- taining the Surrogate's leave, and purposely so, it would seem ; for the very next section (section 2609) declares that, if no suc- cessor to the removed officer has been appointed, such leave must be procured before a " person aggrieved " may maintain an action upon such officer's bond. Soofield v. Adriance, 1 Dem. 196 ; Dunne v. Amer. Surety Co., 43 App. Div. 91. § 30. Action by a person in whose favor the decree was made. — Under section 2607 a creditor is included among those BONDS OF EXECUTORS, ADMINISTJRATOKS, ETC. 917 who can sue the sureties on the bond, provided he is the per- son in whose favor the decree in question was made. See Pervple v. Dunlap, 13 Johns. 437. See also People v. Barnes, 12 Wend. 492. And one to whona a fund is directed to be paid by an executor or administrator whether he is to receive it in an individual or representative capacity, as for example, a general guardian, comes within the meaning of this section, and may maintain an action upon the bond of the executor or administrator who fails to comply with the decree. Prentiss V. Weatherly, 68 Hun, 114, 144 N. Y. 707 ; Van Zandt v. Grant, 67 App. Div. 70, 74. There is some doubt as to whether the infant interested may sue directly by guardian ad Utem. There would seem to be no good reason why he cannot so prosecute the bond. See Prentiss v. Weatherly, Van Zandt v. Grant, supra, Perhins v. Stimmel, 114 N. Y. 359 ; Segelken v.- Meyer, 94 N. Y. 473. The first fundamental principle underlying actions upon bonds given in Surrogates' Courts is, that the sureties are con- cluded by proceedings against their principal provided the Surrogate had jurisdiction ; and consequently the Court of Appeals has held, that irregularities in the proceedings against the principal cannot be set up collaterally by the sureties when suit is brought upon the bond. See Kelly v. West, 80 N. Y. 139. If the Surrogate had jurisdiction to make the order, the neglect or refusal to comply with which occasions the loss or damage which is made the basis of the sureties' liability, and the order or decree is valid as against the principal, it is valid as to all others including the sureties upon the official bond. Altman v. Hofeller, 152 N. Y. 498, 502. The mere fact that the sureties are not parties to the proceeding is immaterial as they have no legal interest in the proceeding anyhow, and as Judge Earl says, in the case above cited, " Could properly in no way be made parties thereto." Ihid., at page 144. If the principal wastes the estate and flees the jurisdiction, thus avoiding personal service, substituted service may be had under section 2521 (see ante, p. 85) of papers in the proceed- in o- to revoke his letters or to compel him to pay over moneys. On proof of such service the Surrogate may make his order, and on proof of non-compliance therewith, the surety may be sued. Scharmann v. Schoell, 38 App. Div. 528, 530, citing ffunt V. Hunt, 72 N. Y. 217 ; Burton v. Burton, 45 Hun, 68 ; 918 SUEKOGATES' COITETS. Gont. Nat. Banh v. Thurler, 74 Hun, 632. See also Scharmomn V. Sohoell, 23 App. Div. 398. But, conceding the jurisdiction of the Surrogate to warrant the prosecution of a bond, it is only necessary to show that the bond was forfeited by non-compliance with a lawful decree of the Surrogate on the part of the executor or administrator. The general rule is well settled, that the sureties upon the bond of an executor or administrator are not liable until the default of their principal has been established before the Surrogate, or as it has been differently stated, that no action can be maintained against such sureties until either an accounting has been had against the executor or administrator or their personal rep- resentative in the event of their death, or until such executor or administrator or their personal representative have diso- beyed some valid order or decree of the Surrogate's Court- having jurisdiction touching the administration of the estate committed to their charge. Bischoff\. Engel, 10 App. Div. 241, 213. See Hood v. Hood, 85 N. Y. 661 ; Haight v. BrisUn, 100 N. Y. 219 ; PerUns v. Stimmel, 114 N. Y. 359 ; French. ■ V. Dauohy, 134 JSf. Y. 542. Nevertheless even where the de- fault of the principal has not been established before the ^k\v- voga,te, exceptional circumstances may exist suificient to wav- rant the interposition of a Court of Equity and to establish a breach or default in some other manner, and give a remedy against the sureties without any order for the prosecution of the bond. Bischoff v. Engel, 10 App. Div. 240, 243. Such a case is presented where an administrator is dead and his estate wholly insolvent, and his personal representative is without the jurisdiction, and unless such an action could be maintained it is manifest that the sureties would permanently escape and the persons for whose benefit and security the bond was given would be whoU}'^ remediless. But in the ordinary cases, where this appeal to a Court of Equity is not made necessary, the default must be established, and when required by the Code, the direction of the Surrogate obtained to prosecute the bond. See People v. Barnes, 12 "Wend. 492, and cases digested in note a. So where guardian removed to another State and died there intestate, leaving no property in either State, the Court of Appeals held that an accounting need not first be had prelimin- ary to a suit in equity against the sureties to have it adjudged what if any sum is due the ward from the guardian, and to BONDS OF EXECUTORS, ADMINISTKATOES, ETC. 919 charge the amount found so due upon the sureties. Otto v. Van Riper, 164 N. Y. 536, citing Long v. Long, 142 N. Y. 545. See also as to sureties of a defaulting non-resident trustee, Yates v. Thomas, 35 Misc. 552. Where a general guardian was charged upon his accounting with certain moneys which in his previous capacity as admin- istrator of the estate of the father of his wards, he had been di- rected by a decree settling his accounts as administrator to pay to himself as such guardian, which it then appeared he had not done having misappropriated them before his appointment as guardian, it was held that his sureties were liable for this default under section 2596 and that they could not evade their liability by reason of having petitioned after the decree settling their principal's account as administrator that he be required to give other sureties in default of which his letters as guardian had been revoked. Matter of Noll, 10 App. Div. 356. In the case last cited Judge Bradley observes (at page 360) : " Where the obligation as administrator to pay, and the right and duty to receive as guardian are united in the same person, as in the present case, he becomes charged in the latter capacit3^ And it is no objection, available to the sureties on his official bond as guardian, for them to allege that prior to that time or to the time of his appointment as guardian he had misappropriated and converted to his own use the fund which came to him as administrator, and to which his wards were entitled. As he had received such fund and had not disposed of it in the admin- istration of the estate, he, in legal contemplation, had it in his custody at the time the decree was made. And, for the purpose of the effectiveness of the obligation assumed by the sureties in his official bond as guardian, his liability to account for it con- clusively charges him with having the requisite fund." The Surrogate may order the prosecution of an administrator's bond for nonperformance of a decree made against him on rendering an account or upon final settlement, or for the payment of a debt, legacy, or distributive share, without previous service of a copy of the decree or demand of the money or citation to show cause. People v. Rowland, 5 Barb. 449. And so it has been held that in an action on the bond, it is sufficient to allege that upon proper requisition to account an accounting was had, a bal- ance was found, and a distribution made, and payment decreed and that the bond was forfeited by nonpayment and ordered by 920 StTEROGATES' COUETS. the Surrogate to be prosecuted. People v. Falkner, 2 Sandf. 81. So if judgment is recovered against an administrator, and the Surrogate directs him to pay the judgment by a decree, the cred- itor in case of nonpayment may immediately sue upon the bond. Thayer v. Clark, 48 Barb. 243. § 31. Action by successor. — There is nothing in the present statute requiring the assignment of the bond to be sued upoii, by an order of the Surrogate prior to its being prosecuted. The successor, it will be noted from the language of section 2608, is not required to obtain leave to maintain an action upon his predecessor's official bond. There is nothing necessary in order to his doing so farther than that the condition of the bond shall have been broken by some act or default of the executor, ad- ministrator or guardian whose letters have been revoked. The successor of the superseded or removed executor or administra- tor, has not only a right, but it is his duty to prosecute the bond with a view to recovering any money or the full value of any other property which may have been received and not duly administered by his predecessor. The occasion for a suit by the successor usually arises after the accounting by the prede- cessor and the adjudication by the Surrogate that he pay over to his successor a given sum or deliver over certain property, the default to do which requires the action contemplated by sec- tion 2608. The sureties are bound by the decree because by their contract, as the Court of Appeals observes {Casoni v. Jerome, 58 N^. Y. 315, and cases cited), they are privy to the proceedings against their principal, and when the principal is concluded, they in the absence of fraud or collusion, are con- cluded also. See Harrison v. Glarh, 87 N. Y. 572, 675. "Where the executor or administrator removed was one of several exec- utors or administrators, the remaining executors or administra- tors are held to be for the purpose of the trust, the successors of the one removed and might bring an action for the benefit of the estate under section 2608. See Hood v. Hay ward, 124 N. Y. 1, and 48 Hun, 388. See also Boyle v. St. John, 28 Hun, 454. So in a recent case the Court of Appeals in passing upon the right of one of two joint administrators to maintain an action against the sureties upon the joint bond of the two administra- tors held that although the co-administrators joined in the ex- ecution of the bond, it was not intended in requiring such a bond to be executed to change the liability or duties of the per- SONDS OF EXfiCITTORS, ADMINISTKATORS, ETC. 921 sons appointed from that which existed under the provisions of the statute independent of the bond. " The bond was not intended to vary their obligation or their rights and duties as defined by law .... they were con- sequently jointly liable for joint acts, and severally liable for their own acts. . . . They each signed the bond as principal. Neither signed it as surety." Nanz v. Oakley, 120 IST. Y. 81, 90. And the surety upon such a bond becomes liable for the joint acts of the individuals and for the individual defaults of each. In the case cited Judge Haight observes : " The question in reference to the liability of executors and administrators for the default 6i each other, independent of any bond, is well settled by the authorities. Each of several executors or administrators has the power to reduce to possession the assets and collect all the debts due the estate, and is responsible for all that he re- ceives. The payment of money or delivery of assets to a co-ex- ecutor or co-adrainistrator will not discharge him from liability ; for having received the assets in his official capacity, he can discharge himself only by a due administration thereof in ac- cordance with the requirements of the law. Consequently one joint executor or administrator is not liable for the assets which come into the hands of the other, nor for the laches, waste, dev- astavit or mismanagement of his co-executor or co-administra- tor, unless he consents to or joins in an act resulting in loss to the estate, in which event he will become liable. In other words, co-executors and co-administrators may act either sep- arately or in conjunction. They are jointly responsible for joint acts, and each is separately answerable for his separate acts and defaults. Bruen v. Gillet, 115 N. Y. 10 ; Croft v. Williams, 88 id. 384 ; Ormiston v. Olcott, 84 id. 339 ; Adair v. Brimmer, 74 id. 539 ; 2 Woerner's Law of Admin, section 348 ; Brandt on Suretyship, etc., section 490." § 32. Action by person aggrieved where no successor is appointed.— It is necessary to get leave of the Surrogate to maintain an action under section 2609, upon the official bond of an executor or administrator where no successor has been appointed. Dunne v. American Surety Co., 43 App. Div. 91. This action must be in behalf of the plaintiff and all others in- terested. The section provides for a very important class of cases. Where the letters of an executor or administrator have been revoked prior to his accounting, or prior to the entry of 922 SUEBOaATES' COtTETS. a judgment against him as such, the Surrogate has no power subsequently to compel him to account except upon petition of a successor or of a former corepresentative under section 2605. So the court is equally without power to exercise any jurisdic- tion over the removed executor or administrator as such, and cannot, for example, direct him to pay the claim of a creditor. See Breslin v. Smyth^ 3 Dem. 251. So in the case just cited Sur- rogate EoUins intimated a doubt, whether a judgment entered against the one so removed in his representative capacity after his letters had been revoked could be enforced against the es- tate (referring to sections 2603 and 2604). But, he observes, that if the judgment debtor has a valid claim, either because of his judgment or of the demands upon which it is founded, " Section 2609 points out-a method by which its collection may be enforced in case no successor has been appointed to the de- ceased administrator." § 33. Liability of the sureties. — The condition of official bonds in the Surrogate's Court is twofold, involving; (a) The faithful discharge of the trust committed to him. (b) Obedience to all lawful orders and decrees, etc. It may therefore be generally premised that, before a surety can be sued upon such a bond there must have been either a devastavit or disobedience. In a recent case the Court of Appeals indi- cated what would be suffcient proof of devastavit in an action against the sureties on a bond. Potter v. Ogden, 136 N. Y. 384, 389. The plaintiff was entitled to a distributive share in her grandmother's estate, and sued the executors of one of the sureties on the administrators' bond and proved the following facts : (a) The appointment of the administrator. (b) The execution of the bond. (c) The receipt and possession of the estate by the adminis- trator. {d) The amount of his liability to plaintiff for her distribu- tive share (which was proved by a decree of the Surrogate's Court upon an accounting). (e) That nothing had ever been paid to or received by the plaintiff on account of such distributive share. (/) The total waste of the fund and the insolvency of the administrator. This, observes Judge Finch, showed a devastavit for which BONDS OF EXBCXTTOES, ADMINISTEATOES, ETC. 923 the bondsmen of the administrator were liable. The court commented in this case upon the difference between the pro- cedure prior and subsequent to the Code in proving a devasta- vit. See page 390. The only defense available for sureties where the bond is prosecuted for disobedience to an order or decree of the Surro- gate is to show an absolute lack of jurisdiction to make the order, or that the order is in excess of the powers which the Surrogate had in the premises. The q uestion occasionally arises as to the liability of sureties upon the bond of an executor who is a trustee of the same will. It has been already noted that sureties of an executor are not liable for his acts as trustee, but so long as the executor is not discharged as such, moneys in his hands as executor are presumed to continue in his hands until formally turned over to himself as trustee, and until his formal discharge as executor by a decree of the Surrogate upon his final accounting as such ; and the liability of his sureties continues until it can be shown that as executor he has lawfully parted with the fund. It therefore becomes important to note the exact terms of the decree settling the accounts of execu- tors, as cases may turn upon whether they are or are not in fact discharged by the decree. See Matter of Estate of Hood, 98 N. Y. 368, and see same case 104 N. Y. 103. See also Lay- tin v. Damidson, 95 JST. Y. 263, MatUr of Willets, 112 IST. Y. 289, and Oluf v. Bay, 121 N. Y. 195, 205. A mere adjudi- cation of the settlement of the accounts of an executor cannot operate so as that he can be deemed to have ceased to hold the funds as such. As Judge Finch observes in Johnson v. Law- rence, 95 N. Y. 162, " The duties of the trustee must be ac- tually entered upon and performance begun or the executor be wholly discharged by the decree of the Surrogate." While as has been stated the foundation of the action, in the case of disobedience, is noncompliance with a lawful decree or order of the Surrogate, the decree alone is not sufficient evi- dence and is in fact inadmissible in the absence of the record showing service upon the parties and the actual acquiring of jurisdiction of the parties by the Surrogate's Court in the man- ner prescribed by law. The simple production of the decree proves nothing, if the objection be taken, that the judgment- roll or that the proceedings that resulted in the decree, must be produced, and accordingly it is error to overrule such an 924 StTEEOGATES' COtTETS. objection because the record in the action must show that the Surrogate had jurisdiction of the parties. This is necessary because should it appear from the record, that the proper pro- ceedings had not been taken so as to confer jurisdiction upon the Surrogate to render the decree which he assumed to render, of course the decree could not be admitted in evidence. See Nam V. Oakley, 60 Hun, 431, Van Brunt, P. J. This is not inconsistent with the proposition alread}'^ laid down that the sureties are concluded by the decree against their principal (see Field V. Van Cott, 15 Abb. Pr. N. S. 349), but merely indicates the manner in which the one prosecuting an official bond must prove his case. Thus {Scqfield v. Churchill, 72 N. Y. 565, 570), in an action upon an executor's bond, with the usual conditions, and where the breach was the failure of the executor to distrib- ute and pay the sums found due upon an accounting, among others a legacy bequeathed to the plaintiff, the Court of Appeals declared, that as a breach of the condition had occurred within the letter of the bond, the positive undertaking of the surety had become fixed and operative by the Surrogate's decree. And Judge Miller observes : " In the absence of fraud or collusion between the executor and the legatee, the decree of the Surro- gate is conclusive upon the sureties. It binds the sureties and the principal alike, and cannot be impeached in a collateral pro- ceeding. While the most solemn judgments do not conclude those who are neither parties nor privies, yet, when an obligee undertakes the payment of a judgment which may be recovered against his principal, he cannot escape the effect of such judg- ment when recovered. " He has bound himself to pay, and is indebted for the amount of the judgment when recovered, without regard to its legal merits. Such is the nature of this contract, and he must abide and stand by it, irrespective of the consequences. He cannot go behind it, or allege that it was erroneous and embraced more than was intended. The decree is final as to the indebtedness of the estate, and the obligation of the executor to pay, and the sureties cannot go back of such judgment," citing Thayer v. ClarTc, 4 Abb. (Ct. of App.) 391 ; 48 Barb. 243 ; The People v. Ihwning, 4 Sandf. 189 ; Baggoit v. Boulger, 2 Duer, 160. The effect of this decision is merely to give the person injured by an executor's or administrator's default, the benefit of the adjudication that the default has occurred and the damage been BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 925 suffered, the sureties being estopped from going back of the proceedings against their principal. But it does not mean, that the sureties are to be held liable under any or all decrees ao-ainst their principal. The condition of the bond. is that their princi- pal shall obey all lawful orders and decrees. The word " law- ful " contemplates that the decree or order shall have been made by a Surrogate having full and proper jurisdiction. It is there- fore necessary to the plaintiff's case, in prosecuting such an official bond that he prove the regularity of the order or decree and establish affirmatively that it was a lawful order or de- cree. § 33. Action against sureties. — It follows from the broad language of the sections already quoted, that where a person aggrieved is given the right to prosecute the bond, e'oery person aggrieved by the devasta/vit or disobedience of the executor or administrator may do the same. Though the bond runs to the people it is only a matter of form. Dunne v. Amer. Surety Co., 43 App. Div. 91, ante, p. 873. In an early case it was held that where an administrator's account was judicially settled, the several next of kin were entitled to separate certificates fixing the amount of their respective shares, and that each might maintain an individual action upon the bond of the adminis- trator. See Bramley v. Forman, 15 Hun, 144. It is of course a defense available for the sureties if they can prove payment of the fund to a person lawfully entitled to receive it or sub- stantial compliance with the lawful order or decree, but the burden of proving such payment or compliance is of course upon the defendants. See Eagcm v. Kergill, 1 Dem. 464, 46f>, citing MoKyrmg v. Bull, 16 N. Y. 297 ; JVew v. McoU, 73 1^. Y. 132. See also Dayton v. Johnson, 69 N. Y. 419. It is also a valid defense to prove a decree discharging the executor or administrator and his sureties. Where this de- fense was interposed in an action against the sureties upon an administrator's bond, and it appeared that the decree pleaded had been subsequently set aside for fraud by the Surrogate, it was claimed by the sureties that inasmuch as they had, subse- quent to the making of the decree, parted with the indemnity theretofore held by them in the belief that their liability upon the bond had terminated, and inasmuch as they were not made parties to or given any notice of the proceedings to set aside the decree discharging them, they were not bound by the 926 SUKEOGATES' COURTS. last -decree nor had the Surrogate power to reinstate them in any liability as sureties upon their bond. The Court of Ap- peals by Euger, Ch. J., {Deobold v. Oppermann, 111 N. Y. 531, 536), held, that this claim on the part of the sureties was clearly untenable. That the decree discharging the adminis- tratrix and her sureties was, when made, assailable by any party thereby aggrieved, either by motion to set it aside, or by proceedings on appeal. And Judge Euger remarks : " In neither case was it necessary that the sureties should have notice of the proceeding. The sureties are the privies of the administratrix, and are precluded from questioning any lawful order made by the Surrogate in a proceeding wherein she is a party, if obtained without collusion between such ad- ministratrix and the next of kin or creditors of the estate. Scofield V. Ghurchill, 72 IS". Y. 565 ; Gerould v. Wilson, 81 id. 573. (See also Keegan v. Smith, 60 App. Div. 168, citing McMahon v. Smith, 24 App. Div. 25.) " Their bond contemplates that they shall remain sureties as long as the Surrogate retains jurisdiction of the proceedi/ngs in administration of the estate, and has power to make valid orders therein affecting the ^property administered upon. " Of course, the sureties should not be bound by an order which the Surrogate had no jurisdiction to make ; but so long as his jurisdiction continues the liability of the sureties remains. " The very language of the bond provides for orders made in proceedings inter alios, and for the liability of the sureties for a non-performance by the administratrix of any decree or order made by the Surrogate's Court. The condition of the bond is that liability shall follow her infidelity to her trust, or disobedi- ence of any lawful order or decree whenever made in the pro- ceedings. " It was, we think, never heard of in practice that sureties on an administrator's bond, should have notice of proceedings in the administration of an intestate's estate. . . . "The decree under which the defendants claim discharge from liability was procured by fraud, practiced upon the Surro- gate, through the presentation of papers fraudulently obtained and used by her. It was against the perpetration of such frauds that the defendants' bond was intended to protect the benefi- ciaries of the estate. The defendants had covenanted that the administratrix should faithfully execute the trust reposed in BONDS OF EXECTTTOKS, ADMINISTRATORS, ETC. 927 her, and obey all lawful decrees and orders of the Surrogate's Court. "When she obtained, through fraud, the order of the Surrogate awarding the moneys of the estate to her, and can- celing her bond, she violated the obligations of her trust, and the defendants became liable for the damages flowing from such breach of duty. That the defendants were deceived by the administratrix constituted no protection to them, for they had guaranteed that she should deceive nobody in the administra- tion of her trust. The liability of the sureties is co- extensive with that of the administratrix, and embraces the performance of every duty she is called upon to discharge in the course of administration. " It is quite absurd to say that the very fact which creates a cause of action against the sureties, should also operate as a defense to them. They cannot stand as innocent parties in relation to an action which they have covenanted to the plain- tiff, and all others interested, should never be performed. And they have sustained no legal loss when subjected to a liability which they agree to assume in the event, which is now alleged as the cause of their misfortune." § 34. Bights of sureties. — While the liability of sureties is as appears from the foregoing sections rigidly enforced, where either a devastavit or disobedience to a lawful decree is shown, yet the liability of the surety will not be extended beyond the actual obligations of the bond. Thus he cannot be held liable to pay fines imposed upon his principal for contempt (see Loop v. Northrup, 59 Hun, 75), as for example, in failing to account ; nor can they be held liable for failure to comply with part of an otherwise lawful decree which the Surrogate has no power to make. Thus where a Surrogate, making a decree for dis- tribution in a proceeding for a compulsory accounting, made an award of costs to an attorney personally, it was held that the sureties could not be held for the default of the administrator in declining to pay such costs. McMahon v. Smith, 20 Misc. 305, App. Term. So in the case just cited where the Surrogate had proceeded to make the decree for distribution, and failed to cause some of the next of kin to be cited as required by section 2743 of the Code of Civil Procedure, the Appellate Term held that the decree was not such a lawful decree or order of the Surrogate's Court, for failure to comply with which on the part of their principal the sureties defendant had bound 928 STTRKOGATBS' COTTBTS. themselves to pay. Ibid. See opinion of Bischoff, Jr., at page 307. A surety upon an official bond in a Surrogate's Court who has been required to pay upon a suit upon the bond, has un- doubtedly the right to contribution from his co-surety, and it is the rule that if a surety be dead his estate continues liable for his obligation upon the bond, so his obligation for contribu- tion continues. " The death of the surety does not discharge his estate from liability to contribute to the payment of the amount paid to the other surety upon the joint obligation." Bradley v. Bur- well, 3 Den. 61. See also Norton v. Coons, 3 Den. 130 ; Gomes V. Wilkins, 14 Hun, 428, 431. In the case last cited the Court of Appeals in affirming the judgment of the General Term (see 79 New York, 129, 136) did not pass upon this question of liabiUty for contribution in view of the fact that the statute of limitations had run in the case against the surety who had paid the debt. It is also equally clear that the surety upon such an official bond may call upon the principal to indemnify him, for by pay- ing the debt the surety becomes subrogated to all rights re- specting the enforcement of the same, and where there are two principals he may call upon either for indemnity. See McCoun V. Sperh, 53 Hun, 166. This has been held to be the law, even where of two joint administrators one was guilty of a devasta- vit in consequence of which the surety on the administrator's bond was held liable to make good the loss. Having done so the said surety sued the other principal who had been guilty of no wrongdoing. The General Term in the Second Department {MoCoun V. Sperb, 53 Hun, 166), held that the action was main- tainable although in effect it rendered the one administrator liable for the torts of his co-administrator. In Sperb v. Mc- Coun, 110 N". Y. 605, the Court of Appeals passed upon the right of one administrator who had compelled his co-administrator to account under sections 2603 and 2606 of the Code, and secured a decree for the payment and delivery of the fund to himself upon the revocation of the letters of his co-administrator to prosecute the official bond, it was held that he was authorized first, by section 2607 of the Code to maintain an action upon the official bond which has been filed, to recover the sum thus decreed to be paid to him and which his co-administrator had BONDS OF EXECUTORS, ADMINISTRATORS, ETC. 929 failed to pay. Judge Earl commented upon the fact that the plaintiff, surviving administrator, was also one of the principals upon the bond, and that while in his representative capacity he had a right to prosecute the bond against the one who was his own surety as well as that of his former co-administrator, still when the surety had paid to the plaintiff in his representative capacity, the sum required to indemnify him for the default of his co-administrator he could then as surety enforce his remedy against the plaintiff individually as one of his princi- pals for indemnity. " In this way the estate wiU be protected by the bond, and the defendant as surety will have all the in- demnity which the law gives him." Ibid., at page 610, citing Boyle V. St. John, 28 Hun, 4:54:._ See N'cmz v. Oakley, 120 N. Y. 84 ; Matter of Adams, 30 Misc. 184. In Ifanz v. Oakley where the administrator of the executor who had been inno- cent of wrongdoing sued the surety of his decedent's co-exec- utor who had converted estate moneys, it was held, Haight, J., that the defendant signed as surety, " and as such, she became liable for the joint acts of the principals, and for the individ-' ual defaults of each." § 35. Time limit in bond. — The time during which the surety is liable for the acts of the principal is material. Where the engagement of the surety is for the future he cannot be made liable for the past, as to which he has not covenanted. Thomson v. Am. Surety Go., 170 N. Y. 109, 113, aff'g 56 App. Div. lis ; Thomson v. MaoOregor, 81 N. Y. 592. But when the surety engages that the principal will account before a court of competent jurisdiction for the money or property coming to his hands by virtue of the representative relation, the surety is then bound by any competent judgment deter- mining the amount, and no defense is open to him unless he can show fraud or collusion. Thomson v. Am. Surety Co., supra, at p. 114, citing AnneU v. Terry, 35 N. Y. 256 ; Soofeld V. GhurchiU, 72 N. Y. 565.