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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 person 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 an inventory, an account, or increased secu rity, 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 there from is pending.

12. The term, "next of kin ", includes all those entitled, under the provisions of law relating to the distri bution of personal property, to share in the unbe queathed 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 extinguished 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, descended as prescribed by law. The expression, "personal property", signifies every kind of property, which survives a decedent, other than real property as defined in this subdivision, and includes a right of action conferred by special statutory provision upon an executor or administrator.

New, except subd. 4; 2 R. S. 68, 871 (2 Edm. 70) and subd. 13; 1 R. S. 754,827 (1 Edm. 706). Sellis' Case, 4 Abb. Pr. 472; 8. c., Babcock v. Ellis, 4 Bradf. 218; Glover v. Holly, 2 id. 291; Guild r. Peck, 11 Patre, 475; Westervell v. Gregg, 1 Barb. Ch. 469; Hallett v. Hare, 5 Paige, 315; 18 Abb. N. S. 429, n.; Murdock v. Ward, 67 N. Y. 387; Luce v. Dunham, 69 id. 36; Keteltas v. Keteltas, 72 Id. 312.

TITLE II.

Provisions relating generally to the proceedings in surrogates' courts, and to appeals from those courts.

ARTICLE 1. Process, and service thereof; appearance, and Joinder of issues; miscellaneous regulations of practice.

2. Hearing; including trial by jury and reference.

3. Decrees and orders; and the enforcement thereof. Costs and fees.

4. Appeal.

5. Provisions relating generally to letters; and generally to executors, administrators, guardians, and testamentary trustees.

ARTICLE FIRST.

PROCESS, AND SERVICE THEREOF; APPEARANCE, AND JOINDER OF ISSUE; MISCELLANEOUS REGULATIONS OF PRACTICE.

SEC. 2515. Process; how executed and returnable.

2516. Proceedings to be commenced by citation.

2517. Id.; within the statute of limitations.

2518. Persons constituting a class; when to be cited; citation when some are unknown.

2519. Contents of citation.

2520. Citation; how served in the State.

2321. Substitute for personal service upon a resident.

2522. Service by publication, etc.

2523. Id.; upon persons unknown, etc.

2524. Order; when and how made; contents thereof.

2525. What time required for delivery of copy, etc.

2526. Service upon a corporation, infant, lunatic, etc.

2527. Id.; upon infant, etc.; additional requirements in certain

cases.

2528. Appearance: how made, and effect thereof.

2529. Surrogate's father or son not to practice before him.

2530. Special guardian; when to be appointed.

2531. Notice of proceedings to appoint special guardian.

2532. Proof of service of citation, subpiena, etc.

2533. Written pleadings may be required.

2534. Verification thereof.

2535, 2536. Publication of citation, etc.

2537. Money paid into court and securities taken, how disposed of. 2538. Certain provisions made applicable to proceedings in surrogates' courts.

$2515. Process; how executed and returnable. — A citation or other mandate of a surrogate's court must, except where it is otherwise specially prescribed by law, be made returnable before the surrogate from whose court it was issued, and may be served or exe. cuted in any county. A warrant of attachment must be directed to the sheriff of the surrogate's county;

who may execute it in any county, and must convey the person arrested to the place where it is returnable.

48.

L. 1837, ch. 460, 22 66, 67 (4 Edm. 498). People v. Pelham, 14 Wend.

2516. Proceedings to be commenced by citation. -Except in a case where it is otherwise specially prescribed by law, a special proceeding in a surrogate's court must be commenced by the service of a citation, issued upon the presentation of a petition. But upon the presentation of the petition, the court acquires jurisdiction to do any act, which may be done before actual service of the citation.

New. See 2525 and 2533. post. Wetmore v. Parker, 52 N. Y. 450; s. c., 7 Lans. 121.

$ 2517. Id., within the statute of limitations.— 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 prescribed in section 2520 of this act, upon the adverse party, or upon one of 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. New. See 399 and 400, ante.

2518. Persons constituting a class; when to be cited; citation when some are unknown. - Where it is prescribed, in any provision of this chapter, that a petitioner must pray that a person, or that creditors, next of kin, legatees, heirs, devisees, or other persons constituting a class, may be cited for any purpose, all those persons are necessary parties to the special proceeding. Where persons to be cited constitute a class, the petitioner must set forth, in an affidavit, the name 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 discretion, 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, cannot 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 decedent, or interest in the property or matter in question; or otherwise sufficiently identifying the person or persons intended. A citation, thus directed, has the same force and effect, 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. New in form; 2 R. S. 74, 26 (2 Edm. 75).

2519. Contents of citation. - 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.

L. 1837, ch. 460, 27 (4 Edm. 487).

2520. Citation; how served in 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 delivering 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. A citation must be so served, if 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; unless, in either case, the person served, being an adult, and not incompetent, assents in writing to a service

within a shorter time. Any person, although a party to the special proceeding, may serve a citation.

New in form. Wetmore v. Parker, 52 N. Y. 450; Bibby v. Meyer, 10 Paige, 220.

2521. Substitute for personal service upon a resident. Where it appears by affidavit, to the satisfaction of the surrogate from whose court a citation issued, that proper and diligent effort has been made to serve it upon a resident of the State, as prescribed in the last section; and that 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 prescribed in section 436 of this act; and the provisions of that sec tion and of section 437 of this act, relating to the service of a summons, apply to the service of a citation, pursuant to an order made as prescribed in this section.

New in form.

2522. Service by publication, etc. The surrogate, from whose court a citation is issued, may make an order, directing the service thereof without the State, or by publication, in either of the following cases:

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.

3. Where the person to be served, being a resident of the State, has been continuously without the United States, for such a length of time, and under such cir cumstances, that an order for the service upon him without the State, or by publication, of a summons issued from the supreme court, might be made by a judge.

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

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