페이지 이미지
PDF
ePub

! Dem, 202,

the better protection of any party, or other person interested, the surrogate's court may, in its discretion, allow such

defect to be supplied by amendment. 44 Hun, 106. $ 2475. Jurisdiction, once duly exercised over any 129 N. Y. 640 matter, by a surrogate's court, excludes the subsequent er.

ercise 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 conrt of each county has juris. diction, exclusive of every other surrogate's court, to take the proof of a will, and to grant letters testamentary there upon, 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 properly within that county, and no other; or leaving personal property which has, since his death, come into that county, and do 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 erery 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 couris 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 c: a domestic government, state, county, public officer, association, or corporation, is, for the purpose of so conferring juris liction, regarded as personal property, at the place where the boud, vote, or other instrument is, either within or without the State.

§ 2479. [Am'd 1883.) Where a new county has been 13 Misc. 714. 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, where 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, tiled, entered, or recorded in the surrogate's court thereof, must be furnished on the payment of the fees therefor, by the proper oflicer, to any person interested in the estate ; and upon the latter's request and payment of the fees therefor, the proper officer of the court so havin : j urisdiction inust file, enter or record the same, in like Inner and with like eifect as the originals. Where the leiters 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 unaf12 ted 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

477.

29.

the surrogate's court having jurisdiction : and the latte 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. 91 N.Y. 439. $ 2481. A surrogate, in court or out of court, as the 98 Id. 434. case requires, has power: 152 N. Y. 508: 33 App Div. 545 3 N. Y.

1. To issue citati Supp. 431.

to parties, in any matter within the Id. 661.

jurisdiction of his court; and, in a case prescribed by law, 2 N. Y. to compel the attendance of a party. State Rep.

2. To adjourn, from time to time, a hearing or other prom 327. 136 N.Y. 287. ceeding in his court ; and where all persons who are neits29 Abb. N.C. sary parties have not been cited or notified, and citation or 69 State Rep

notice has not been waived by appearance or otherwise, it

is his duty, before proceeding further, so to adjourn the 157 N.Y. 423. same, and to issue a supplemental citation, or require the

petitioner to give an additional potice, as may be necessary.

3. To issue, under the seal of the court, a subpea, requiring the attendance of a witness, residing or being in any part of the State ; or a subpæna 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 trustee, 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, testa. mentary trustee, or guardian, 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 Redt. 398. 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 67 How. Pr. 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 7 N. Y

record and of general jurisdiction exercises the same State Rep. powers. Upon an appeal from a determination of the sur42 Hun, 403rogate, made upon an application pursuant to this subdivi

sion, the general term of the supreme court has the same State Rep. power as the surrogate; and his determination must be 338. reviewed, as if an original application was made to that

term. 82 Hun, 419. 7. To punish any person for a contempt of his court,

civil or criminal, 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. 24 App. Div. 8. Subject to the provisions of law, relating to the dis

qualification of a judge in certain cases, to complete any untinished business, pending before his predecessor in

the office, including proofs, accountings, and examinations. 24 App. Div. 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 prede

Id. 488.
1 Dem. 123.
2 Id. 69.

447.

17 Abb. N. C. 320.

22 N. Y

24 Id. 413. 29 d. 298.

531.

031.

Cessors.

10. To exemplify and certify transcripts of all records of his court, or other papers remaiving therein.

13 Abb. N 11. With respect to any matter not expressly provided 0. 353. 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 otherwise prescribed by statute; and to exercise such incidental powers, as are necessary to carry into effect the pow ers expressly conferred.

§ 2482. [Am'd 1893.] Each provision of this chapter, relating to the jurisdiction of the surrogate's court, to take proof of a will, and to grant letters testamentary 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, I efore or after this chapter takes effect. 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 sur- $ 2493. Id; oompensation.

rogate; their official deg. 2494. Id.; acts, etc., where and
ignations.

how recorded.
2484. Vacancy disability; 2495. Surrogate, when not to be
who to act as surrogate.

counsel, etc. 2485. Id.; if surrogate disquali- 2496. Surrogate, when disquali.

fied, who to act, 2486. Id ; in New York county. 2497. Disqualification; when 2487. Proof of authority.

obje tion mustbe taken. 2488. Id.; when and how made. 2498, 2499. Books to be kept by 2489. Howauthority superseded

surrogate. 2490. Proceedings in New York 2600. Papers and books to be and Kings counties rog.

preservod, and bonds ulated.

filed. 2491. Id.; transfer of proceed- 2501. When

to be ings to surrogate's court.

charged; report of fees. 2492. Temporary surrogate; 2502. What papers to be transwhen board of super

mitted to secretary of visors may appoint.

State; expenses thereof. $ 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 designated in this act, and, when acting as stirro. gate, 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."

82 Han, 8 2484. (Amd 1893.1 Where, in any county, except

or

1

fied.

feeg not

New York, the offi'e of surrogate is vacant; or the surrogate is disabled by reason of sickness, absence or lonacy, and special provisi n is not made by law for the discharge of the duties of his office in that contingency; the duties of his office must be discharged until the vacancy is filled or the disability ceases, as follows:

1. By the special surrogate.

2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge.

3. If there is no special county judge, or he is in like manner disabled, or is precluded or disqualified, by the county judge.

4. If there is no county judge, or he is in like manner disabled, or is precluded or disqualified, by the district attorney.

But before an officer is entitled to act, as prescribed in tbis section, proof of his authority to act as prescribed in section twenty-four hundred and eighty-seven of this act must be made. In any proceeding in the surrogate's court of the county of Kings, before either of the officers autho rized in this section to discharge the duties of the office of surrogate of such county for the time being, if an issue is joined or a contest arises either on the facts or the law, such officer, in his discretion, may, by order transfer such cause to the supreme court, to be heard and decided at a special term thereof, held in such county, which order shall be recorded in the surrogate's office. A certified copy of such order, together with the appropriate certificate or certificates of the authority of the officer to act as surrogate, shall be sufficient and conclusive evidence of the jurisdiction and authority of the supreme court in such matter or

After a final order or decree is made in the matter or cause so transferred to the supreme court, the court shall direct the papers to be returned and filed, and transcripts of al orders and decrees made therein to be recorded in the surrogate's office of such county; and when so filed and recorded, they shall have the same effect is if they were filed and recorded in a case pending in the surrogate's court of such county.

$ 2485. (Am'd 1893.) Where the surrogate of any county, except New York, is precluded or disqualified from acting with respect to any particular matter, his jurisdiction and powers with respect to that matter vest in the several officers designated in the last section, in the order therein provided for. If there is no such officer qualified to act therein, the surrogate may file in his office a certificate stating that fact; specifying the reason why he is disqualified or precluded; and designating the surrogate of an adjoining county, other than New York, to act in his place in the paiticular matter. The surrogate so designated has, with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county.

$ 2456. [Am’d 1886, 1893,1895, amendment to take effect Janu52 Hun, 429, ary 1, 1896.] In the county of New York the supreme court, at

a special term thereof, on the presentation of proof of its anthority, as prescribed in the next section, must exercise all the powers and jurisdiction of the surrogate's court, as follows:

cause.

[ocr errors]

$$ 1183, 1184 Consol. Act.

1

« 이전계속 »