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119 N. Y. 28.

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 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 applied 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 in 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 disclosing 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 Le 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 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 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 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.

TITLE II.

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

ARTICLE 1. Process, and service thereof; appearance, and joinder of issue; 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.

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PROCESS, AND SERVICE THEREOF; APPEARANCE, AND JOINDER OF ISSUE; MISCELLANEOUS REGU

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2 Dem. 313.

§ 2515. 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 executed 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.

2516. 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.

§ 2517. 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 two thousand five hundred and twenty 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 two thousand five | hundred and twenty-two of this act.

2518. Where it is prescribed, in any provision of this chapter, that a petition must pray that a person, or that | creditors, next of kin, legatees, heirs, devisec, 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 descretion, 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 per sons 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.

§ 2519. 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.

§ 2520. Except where special provision is otherwise 8 Dem, 577. 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.

§ 2521. Where it appears, by affidavit, to the satisfac tion 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 sec tion; 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 four hundred and thirty-six of this act; and the provisions of that section and of section four hundred and thirty-seven 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.

2522. [Am'd 1881.] 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 ereditors, or to avoid the service of process.

3 Dem. 55.

3. Where the person to be served, whether an adult or an infant, is a resident of the State, but is temporarily ab sent 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 ex piration of the limitation applicable to the enforcement o 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 has not been extended by the attempt to serve the citation.

§ 2523. The surrogate may also make an order, direct ing the service of a citation without the State, or by publi cation, in either of the 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 can not, 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.

§ 2524. [Am'd 1881.] 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 affi davit or otherwise, to the satisfaction of the surro gate, that the case is one of those specified in those sec tions. 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, for a specified time, which the surrogate deems reasonable, not less than once in each of six consecutive 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 the person with whom he is sojourning, or, if the service is made upon a corporation, to an officer there of, specified in section 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 pub· lication, the petitioner deposit, in a specified post office, & copy of the citation and of the order, contained in a securely closed post-paid wrapper, directed to the person to be served. at a place specified in 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 sat

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