CHAPTER XVIII. SURROGATES' COURTS, AND PROCEEDINGS THEREIN. TITLE I.-ORGANIZATION, JURISDICTION, AND POWERS OF THE COURT. DUTIES, POWERS, AND DISABILITIES OF THE SURROGATE, AND THE OFFICERS OF THE COURT. MISCELLANEOUS PRO VISIONS. TITLE II.-PROVISIONS RELATING GENERALLY TO THE PROCEEDINGS IN SURROGATES' COURTS, AND TO APPEALS FROM THOSE COURTS. TITLE III.-GRANTING AND REVOKING PROBATE, LETTERS TESTAMENTARY, FOREIGN WILLS; ANCIL AND LETTERS OF ADMINISTRATION. TITLE IV.—PROCEEDINGS BY OR AGAINST AN EXECUTOR OR ADMINIS TRATOR, TOUCHING THE ADMINISTRATION AND SETTLEMENT OF THE ESTATE. TITLE V.-DISPOSITION OF THE DECEDENT'S REAL PROPERTY, FOR THE TITLE VI.-PROVISIONS RELATING TO A TESTAMENTARY TRUSTEE. TITLE I. Miscellaneous Organization, jurisdiction, and powers of the court. Duties, powers, and disabilities of the surrogate, and the officers of the court. provisions. ARTICLE 1. Jurisdiction of the court and authority of the surrogate. 2. General duties and disabilities of the surrogate, or temporary surrogate. 3. Clerks; stenographers; miscellaneous provisions. ARTICLE FIRST. JURISDICTION OF THE COURT AND AUTHORITY OF THE SURROGATE, ¡ 2472. General jurisdiction of surro gate's court. 2473. Presumption of jurisdiction. 2474. Jurisdiction not lost by defect in record. 2475. Effect of exercise of jurisdiction. 2476. Exclusive jurisdiction. 1477. Concurrent jurisdiction of two or more surrogates. § 2478. Jurisdiction, how affected by locality of debts. 2472. Each surrogate must hold, within his county, 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 probate of heirship. 2. To grant and revoke letters testamentary and letters of administration, and to appoint a successor in place of a person whose letters have been revoked. 3. To direct and control the conduct, and settle the accounts, of execu Lors, administrators, and 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 distribution of the estates of decedents; and the payment or delivery, by executors, administrators, and testamentary trustees, of money or other property in their possession, belonging 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 expensee, and the disposition of the proceeds thereof. 6. To administer justice, in all matters relating to the affairs of decedents, according to the provisions of the statutes relating thereto. 7. To appoint and remove guardians for infants; to compel the paymen⭑ and delivery 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 accounts. This jurisdiction must be exercised in the cases, and in the manner, prescribed by statute. 2473. Where the jurisdiction of a surrogate's court to make, in a case specified in the last section, 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, conclusively, 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. § 2474. 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. An objection to a decree or other determination, founded upon an ommission 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 proceeding, 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 discretion, allow such a defect to be supplied by amendment. § 2475. Jurisdiction, once duly exercised over any matter, by a surrogate's court, excludes the subsequent exercise of jurisdiction 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 issued from, or any other special proceeding has been duly commenced 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. § 2476. The surrogate's court of each county has jurisdiction, exclusive of every other surrogate's court, to take the proof of a will, and to grant les ters 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 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 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 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, is situated within that county, and no other. § 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 property of the decedent is situated in two or more counties, under the circumstances specified in subdivision fourth of the last section; the surrogate's courts of those counties have concurrent jurisdiction, exclusive of every other surrogate's court, to take the proof of the will and grant letters testamentary 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 the courts so possessing concurrent jurisdiction, the jurisdiction of that court excludes that of the other. 2478. For the purpose of conferring jurisdiction upon a surrogate'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 of two or more joint debtors, resides; and a debt, owing to him by a domestic corporation, is regarded as personal property, situated within the 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 payment of money only, in terms negotiable, or payable to the bearer or holder. Such a debt, whether the debtor is a resident or non-resident of the State, or a foreign or a domestic government, state, county, public officer, association, or corporation, 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. § 2479. [am'd 1883.] Where a new county has been heretofore, or is hereafter, erected, or territory has been heretofore, or is hereafter, transferred from one county to another, 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 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 jurisdiction. 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 exclusive jurisdiction of the estate, and of all matters incidental 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 the payment of the fees therefor, by the proper officer, to any person interested in the estate; and apen the latter's request and payment of the fees therefor, the proper §§ 2480, 2481 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 jurisdiction of the court from which they were issued remains unaffected by any change in the territorial limits of its county. § 2480. A special proceeding pending in a surrogate's court, whose jurisdiction to entertain the same is taken away by the provisions 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. § 2481. 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 proceeding in his court; and where all persons who are necessary 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 petitioner to give an additional notice, as may be necessary. 3. To issue, under the seal of the court, a subpœna, requiring 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, an executor, administrator, testamentary irustee, 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, testamentary trustee, 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 evidence, 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 general term 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 crim inal, 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 disqualification 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 predecessors. 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, according 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 expressly conferred. § 2482. 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 testa. mentary, or letters of administration, or regulating 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. [Added 1893.] All acts hitherto of surrogates and officers acting as such in completing by certifying in their own names any uncertified wills, and by signing and certifying in their own names, the unsigned 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. ARTICLE SECOND. GENERAL DUTIES AND DISABILITIES OF THE SURROGATE, OR TEMPORARY SURROGATE. 2483. Surrogate and acting surrogate ; their official designations. 2484. Vacancy or disability; who to act as surrogate. 2485. Id.; if surrogate disqualified. 2487. Proof of authority. § 2493. Id.; compensation. 2494. Id.; acts, etc., where and how recorded. 2495. Surrogate, when not to be coun eel, etc. 2496. Surrogate, when disqualified. 2497. Disqualification; when objection must be taken. 2498, 2499. Books to be kept by surrogate. 2500. Papers and books to be pre 2501. Surrogate to report fees. ex 2492. Temporary surrogate; when board of supervisors may appoint. § 2483. 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 desig. nated in this act, and, when acting as surrogate, may be designated, as the "special surrogate " 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." |