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, as the case may be.

§ 2487. [Am'd 1887, 1893, 1895, amendment to take effect January 1, 1896.] The authority of another officer or, in the county of New York, of the supreme court, to act as prescribed in the last three sections, must be proved in one of the following modes:

1. Where the surrogate is disqualified or precluded from acting in a particular matter, that fact may be proved by the surrogate's certificate thereof; or, except as otherwise prescribed in section twenty-four hundred and eighty-five, by affidavit or oral testimony.

2. 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, or of the court, as the case may be, to act in his place, may be proved, and are deemed conclusively established by an order of a justice of the supreme court of the judicial district embracing the county. After such an order is made, the surrogate shall not make the certificate specified in section twenty-four hundred and eighty-five of this act, and if such a certificate has been theretofore filed, the powers and jurisdiction of the surrogate therein designated as specified in that section, thence. forth cease.

sol. Act.
14 N. Y.
State Rep.

375.

§ 2488. [Am'd 1889.] An order may be made as pre- $ 1185, Conscribed in subdivision second of the last section, upon or without notice, as a justice of the supreme court of the juicial district embracing the county thinks proper. It must ecite 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 officer to give security for the due discharge of the duties therein. Where the office of surrogate is vacant, or the surrogate 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.

sol. Act.

$2489. [Am'd 1889.] Where an order is made by a § 1186 Conjustice 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 twenty-four hundred and ninety-two of this act for any cause except a vacancy in the office of surmgate. it may be revoked with nreiudice to any pro

§ 1187, Consol. Act.

§ 1184, Consol. Act.

22 Hun, 443 11 N.Y.State Rep. 375.

ceedings theretofore 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 appointment made upon the ground that the surrogate's office is vacant, 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 unfinished business in any procee ings 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 sur rogate completes the unfinished business of his predecessor

§ 2490. [Am'd 1895, amendment to take effect January 1, 1896.] 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 sign each record, which is required to be signed by the surrogate or the clerk of the surrogate's court. The issuing of a citation may be directed, and any order intermediate the citation and the decree may be made by a judge of the court.

§ 2491. [Am'd 1895, amendment to take effect January 1, 1896.] 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 section 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 supreme court; and he may cause copies of any of the orders or papers to be made, and recorded or filed in his of fice, at the expense of the county.

$ 2492. [Am'd 1893.] In any county, except New York, if the surrogate is disabled, by reason of sickness, and there is no special surrogate, 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 i elected or appointed. A person so appointed must, before entering on the execu tion 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 surrogate,

2493. An officer, or a person appointed by the board 82 Hun, 195 of supervisors, 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 acting, the supervisors of the county must allow him a just compensation for his services therein, to be audited and collected in the

same manner.

§ 2494. Where an act is done or a proceeding is taken 32 Hun, 429 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 recorded, 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 authority of the surrogate of the county; and the officer or person so acting, or the clerk of the surrogate's court, must sign the certificate of probate and any letters so issued, and must certify the record thereof in the book,

$ 2495. [Am'd 1893.] 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 trustee, guardian or infant, over whom, or whose estate or accounts, he could have any jurisdiction by law. The surrogate of the county of Monroe shall not act as referee or practice as attorney or counsellor in any court of record in the State.

2496. In addition to his general disqualifications as a judicial officer, a surrogate is disqualified from acting upon an application for probate, or for letters testamentary, or letters of administration, in each of the following cases:

1 Where he is, or claims to be, an heir 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 examined 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

2497. An objection to the power of a surrogate to act, based upon a disqualification, established by special provision of law, other than one of those enumerated in

7: Han, 969.

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 surrogate.

$2498. Each surrogate must provide and keep the following books:

1. A record book of wills, in which must be recorded. at length, every will, required by law to be recorded in his office, with the decree admitting it to probate, and also, if the probate is not contested, the proof taken thereupon.

2. A record-book of letters testamentary and letters of administration, in which must be recorded all such letters, issued out of his court.

3. A record-book, in which must be recorded every decree, whereby the account of an executor, administrator, trustee, or guardian is settled.

4. A book, containing a minute of every paper filed, or other proceeding taken, relating to the disposition of the real property of a decedent, and a record of every order of decree, made thereupon; with a memorandum of every report made, and other proceeding taken, founded upon à decree for such a disposition.

5. A book, containing a record of every decree or order, the record of which is not required by this section to be kept elsewhere; together with a memorandum of each execution issued, and of the satisfaction of each decree recorded therein.

6. A book, in which must be recorded all letters of guar dianship, issued out of his court.

7. A book of fees and disbursements, in which must be entered, by items, all fees charged or received by him for services or expenses, and all disbursements made or incurred by him, which are chargeable against those fees, or to the county.

The expense of providing the books specified in this seetion is a county charge.

2499. To each of the books, kept as prescribed in the last section, must be attached an alphabetical index referring to the page of the book, where each subject may be found. The surrogate may keep two or more books, for s further division of the subjects specified in either subdivi sion of the last section; in which case, he must keep s separate index to each set of books. Each decree, revoking the probate of a will, or revoking or otherwise affecting letters testamentary, letters of administration, or letters of guardianship, or suspending or removing a testamentary trustee, or modifying or otherwise affecting any other de cree, must be plainly noted at the end or in the margin o the record of the will letters or origina decree with a re erence to the book and page where the subsequent decre is recorded. The books, kept as prescribed in the last see

tion, appertain to the surrogate's office, and must be open, at all reasonable times, to the inspection of any person.

§ 2500. [Am'd 1893.] The surrogate must carefully file an preserve in his office every deposition, affidavit, petition, report, account, voucher, or other paper relating to any proceeding in his court; and deliver to his successor all the papers and books kept by him. All bonds required to be filed with the surrogate or in his office must be proved or acknowledged as deeds are required by law to be proved or acknowledged.

§ 2501. [Am'd 1893.] If the inventory of personal property of a testator or intestate, filed in the office of the surrogate, does not exceed the sum of one thousand dollars, no fees for any services done or performed by the surrogate shall be charged to or received from the executor or administrator. If the petition for letters testamentary or of administration shall allege that in the belief of the petitioner the inventory will not exceed such amount, no fees shall be received until it appears from the inventory when filed that the personal property does not exceed that sum. On the appointment of a guardian, if it appears that the application is made for the purpose of enabling the minor to receive bounty, arrears of pay or prize money, or pension que, or other dues or gratuity from the federal or state government, for the services of the parent or brother of such minor in the military or naval service of the United States, no fees shall be charged or received. The surrogate of each county, except New York, at his own expense, must make a report to the board of supervisors of the county, on the first day of each annual meeting thereof, containing a verified statement of all fees received or charged by him for services, or expenses since the last report, and of all disbursements chargeable against the same, or to the county, stating particularly each item thereof.

§ 2502. [Repealed 1884.]

§ 2503. A surrogate who admits to probate the will of a person, who was not a resident of the State at the time of his death; or grants original or ancillary letters testamentary upon such a will, or original or ancillary letters of administration upon the estate of such a person; must, within ten days thereafter, transmit to the secretary of State, to be filed in his office, a certified copy of the will or letters. The surrogate's fees for making the copy, and the expenses of transmission, must be audited by the comptroller, and paid out of the treasury upon his warrant.

§ 1:89, Con sol. Act, a amended by L. 1884, c.

530.