holder, 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 five dollars for each day, actually and necessarily occupied by him in disposing of the property, and such a further sum as the surrogate thinks reasonable, for the necessary services of his attorney and counsel therein. § 2564. The allowances, specified in the last section, are in lieu of commissions. 2565. An appraiser is entitled, in addition to his actual expenses, to a sum, to be fixed by the surrogate, not exceeding five dollars for each day, actually and necessarily occupied by him, in making the appraisal or inventory. The number of days' services, and the expenses, if any, must be proved by the affidavit of the appraiser; and the sums payable therefor taxed by the surrogate, and paid by the executor or administrator. 2566. Each other officer, including a referee, and each witness, is entitled to the same fees, for his services and for travelling, as he is allowed for like services in the supreme court. § 2567. A surrogate shall not charge or receive any fee, except as fol lows: 1. Where, in a case prescribed by law, or in any other case, upon the application of a party, he goes to a place, other than his office, or the court room where he is required to hold court, in order to take testimony, he may charge, and receive to his own use, ten cents for each mile for going, and the same sum for returning. 2. He must charge, and receive to the use of the county, for a copy of a paper, ten cents for each folio, except where the board of supervisors have allowed his clerk to receive fees for his own use; and in that case, his clerk may charge and receive the same fee. ARTICLE FOURTH. APPEAL. 2568. When party may appeal. 2570. Appeal; to what court it may 2571. Intermediate order; how reviewed. 2572. Time to appeal. 2573. Who must be made parties. 2576. Appeal may be on the law or the § 2568. Any party aggrieved may appeal from a decree or an order of a surrogate's court, in a case prescribed in this article, except where the decree or order of which he complains was rendered or made upon his default. § 2569. A creditor of, or a person interested in, the estate or fund affected by the decree or order, who was not a party to the special proceed ing, but was entitled by law to be heard therein, upon his application; 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, as prescribed in this article. 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. § 2570. An appeal to the supreme court may be taken from a decree of a surrogate's court, or from an order affecting a substantial right, made by a surrogate, or by a surrogate's court, in a special proceeding pending in that court, or after a decree in such a special proceeding. § 2571. An appeal, taken from a decree, brings up for review each intermediate order, which is specified in the notice of appeal, and necessarily affected the decree, and which has not already been reviewed by the appelLate court, upon a separate appeal taken from that order. § 2572. An appeal by a party must be taken within thirty days after the service, upon the appellant, or upon the attorney, if any, who appeared for him in the surrogate's court, of a copy of the decree or order from which the appeal is taken, and a written notice of the entry thereof. An appeal by a person who was not a party, taken as prescribed in this article, must be taken within three months after the entry of the decree or order, unless the appellant's title was acquired by means of an assignment or conveyance from a party; in which case, the appeal must be taken within the time limited for the taking thereof by the assignor or grantor. § 2573. Each party to the special proceeding in the surrogate's court, and each person not a party, who has, or claims to have, in the subjectmatter of the decree or order, a right or interest, which is directly affected thereby, and which appears upon the face of the papers presented in the Burrogate's court, or has become manifest in the course of the proceedings taken therein, must be made a party to the appeal. A person not a party, but who must be made a party, as prescribed in this section, may be brought in by an order of the appellate court, made after the appeal is taken; or the appeal may be dismissed on account of his absence. The appellate court may prescribe the mode of bringing in such a person, by publication, by personal service, or otherwise. But this section does not require a person interested, but not a party, to be brought in, if he was legally represented, or was duly cited in the court below. § 2574. 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 surrogate's court, of a written notice, referring to the decree or order appealed from, and stating that the appellant 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 Where a party, who was duly cited, did not appear in the surrogate's court, notice of appeal must be served upon him personally, 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 cannot, with due diligence, be found, to make personal service 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. § 2575. The provisions of the following sections of this act, to wit: sections one thousand two hundred and ninety-five, one thousand two hundred and ninety-seven, one thousand two hundred and ninety-eight, one thousand two hundred and ninety-nine, one thousand three hundred and three, and one thousand three hundred and five to one thousand three hundred and nine, both inclusive, apply to an appeal taken as prescribed in this article. § 2576. The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial, by the surrogate, of an issue of fact, it must be heard upon a case, to be made and settled by the surrogate, as prescribed by law, for the making and settling of a case upon an appeal in an action. § 2577. 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 undertaking, with at least two sureties, to the effect that the appellant will pay all cost and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. § 2578. [am'd 1882.] Notice of appeal by an executor, administrator, testamentary trustee, guardian, or other person appointed by the surrogate'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 eighteen hundred and twenty-five of this act, does not stay the execution 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 appellant will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sum 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. 2579. An appeal from a decree or an order, directing the commitment of an executor, administrator, testamentary trustee, guardian, or other person appointed by the 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 subpœna 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 affirmed, or the appeal is dismissed, the appellant will, within twenty days after the affirmance or dismissal, surrender himself, in obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to be committed. If the undertaking is broken, it may be prose cuted in the same manner, and with the same effect, as an administrator's official bond; and the proceeds of the action must be pald 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 treasury. $2580. The sum specified in an undertaking, executed as prescribed in oither of the last two sections. must, where the appeal is taken from 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 execu. tiou, it must be not less than twice the sum, to collect which the execution may issue. In every other case, 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 giving the new undertaking, the appeal may be dismissed or the stay dissolved, as the case requires. § 2581. An undertaking, given as prescribed in the last four sections, must be to the people of the State; must contain the name 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 undertaking, 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 people, the damages collected must be paid over to the surrogate, and distributed by him, as justice requires. 2582. [am'd 1881.] An appeal from a decree of a surrogate, admitting a will to probate, or granting letters testamentary, or letters of administration, does not stay the issuing 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 all 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 to satisfy a legacy, or distribute the unbequeathed property of the decedent, until after the final termination of the appeal; and in case letters shall have been issued before such appeal the executor or administrator, on a like order of the surrogate may exercise the powers and authority, subject to the duties, liabilities and exceptions above provided. § 2583. 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, suspending an executor, administrator, or guardian, or removing or suspending a testamentary trustee, or a freeholder, appointed to execute a decree, as prescribed in title fifth 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. § 2584. Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as a stay of the proceedings to enforce the decree or order appealed from, prescribed in section one thousand three hundred and ten of this act, with respect to a perfected appeal from a judgment. 2585. In the supreme court, an appeal from a decree or an order of a surrogate's court must be heard, the judgment, or an order made thereupon, must be entered, and the papers must be filed, in the same manner, and the effect of the judgment, with respect to the proceedings in the surrogate i court, is the same, as where an appeal is taken to the supreme court, from a final judgment or an order of an inferior court, as prescribed in title third of chapter twelfth of this act. § 2586. 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. § 2587. The appellate court may reverse, affirm, 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, and as to any or all of the parties; and it may, if necessary or proper, grant a new trial or hearing. The decree or order appealed from may be enforced, or restitution 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. § 2588. Where the reversal or modification of a decree by the appellate 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 in a circuit court, specified in the order; or in the county court of the county of the surrogate; or, in the city and county of New York, in the court of common pleas. After the trial, a new trial may be granted, as prescribed in section two thousand five hundred and forty-eight of this act. § 2589. 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 surrogate's court. In either case, the costs may be made payable out of the estate or fund, or personally by the unsuccessful party, as directed by the appellate court; or, if such a direc tion is not given, as directed by the surrogate. ARTICLE FIFTH. PROVISIONS RELATING GENERALLY TO LETTERS; AND GENERALLY TO EXECU TORS, ADMINISTRATORS, GUARDIANS, AND TESTAMENTARY TRUSTEES. |