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SURROGATE'S COURT ACT

[L. 1920, CH. 928, AS AMENDED, 1922.]

AN ACT in relation to surrogates and the practice and procedure in surrogates' courts.

[In effect October 1, 1921.]

SURROGATE'S COURT ACT

Article 1. The surrogate and acting surrogate (§§ 1-20).

2. Officers of the surrogate's court (88 21-23).

3. The surrogate's court and its general jurisdiction (§§ 34-47).

4. Proceedings, how begun; pleadings and process; service of citation and other process, and proof thereof (§§ 48-62).

5. Appearance; procedure; trial; orders and decrees (§§ 63-87).

6. General provisions relating to letters (§§ 88-104).

7. Bonds and undertakings; sureties (§§ 105–117).

8. Grant of administration; administrators (§§ 118-136).

9. Production, probate and construction of wills; executors; ancillary letters; testamentary trustees (88 137–171).

10. Guardians (§§ 172-194).

11. Appointment of appraisers; inventory; discovery of property (§§ 195-206). 12. Claims; payment of debts, legacies and expenses; sales of real estate under power contained in will; deposit of money and securities (§§ 207-231).

13. Disposition of real property and income thereof (§§ 232-250).

14. Accounting; judicial settlement and decree (§§ 251-274).

15. Costs and fees; commissions and compensation of executors, administrators, guardians and trustees (§§ 275–287).

16. Appeals (§§ 288-310).

17. Probate of heirship (§§ 311-313).

18. Definitions; application of other laws, (§§ 314-317).
19. Laws repealed; when to take effect (§§ 318, 319).

EDITORIAL NOTES

Revisors' General Note of 1920: The Joint Legislative Committee on the Simplification of Civil Practice recommends the adoption of a separate Surrogate Court Act substantially as proposed by the Board of Statutory Consolidation. No attempt has been made to distinguish in this Act between provisions which should properly be statute and those which might be covered by rules under the plan adopted in the Civil Practice Act, for the reason that chapter 18 of the Code of Civil Procedure as the same now appears, containing the practice in surrogates' courts, was prepared by a commission consisting of surrogates and upon being reported to the Legislature by such commission in 1914 was enacted into law. The Surrogate Court Act submitted herewith is identical in substance with chapter 18 of the Code of Civil Procedure as reported by the surrogates' commission and as amended by subsequent legislatures. In making the chapter a separate act it was necessary to renumber the sections, correct references and insert sections from other parts of the Code of Civil Procedure which were made a part of chapter 18 by express reference. The proposed Act is complete in itself, except that references are made to the supreme court practice without specific re-enactment for certain matters in which the procedure is the same in both courts and which are matters of everyday experience to the practising lawyer, as for example, the verification of pleadings, the drawing of juries,

trial practice, exceptions, and similar matters.

Revisers' General Note of 1914: The commission to revise the statutes in relation to practice in Surrogates' Courts derived its existence and authority from chapter 547 of the Laws of 1912. The act provided for the consolidation, codification and revision of laws relating to the estates of deceased persons and the procedure and practice in Surrogates' Courts, under the supervision of the revision committee of the New York State Surrogates' Association, which committee was by said act constituted a commission for such purpose. The undersigned are the commissioners designated by the New York State Surrogates' Association. The report now presented embraces almost entirely the practice and procedure in Surrogates' Courts now contained in chapter 18 of the Code of Civil Procedure and does not contain any revision of the Decedent Estate Law authorized by the statute which created the commission. In the work of consolidation, eighty-nine of the four hundred sections in chapter 18 of the Code of Civil Procedure have been eliminated. Whatever was of service in those sections has been distributed in other sections. Some of the important changes suggested are as follows: The jurisdiction of the Surrogate's Court is enlarged, so that a final determination may be made in that court of all matters relating to the affairs of a decedent. Provision is made for trial by jury of any controverted question of

fact in the adjudication of which any party has a constitutional right to such trial. This will prevent the multiplicity of trials which may now be had in probate proceedings and permit the surrogate to determine finally all the issues in respect to the validity of a will. The need of modernizing the practice of allowing statutory double trials was pointed out by Justice Follett, in delivering the opinion of the court in Bowen v. Sweeney (89 Hun 359, afd 154 NY 780): "It is apparent that under our boasted reform procedure a will relating to realty and personalty may be declared void because of the insanity of the testator, or for any other cause, in respect to one species of property and valid in respect to the other kind of property, upon the ground that the testator was sane, and so there may be two final adjudications, both supposed to be verities, one affirming a will to be valid and the other affirming it to be void. And in case a will relating to realty and personalty is admitted to probate in the Surrogate's Court, and the decision is reversed by the Supreme Court and the issues are tried before a jury, which are found in favor of the validity of the will, upon which an adjudication is entered by the Surrogate's Court decreeing the will to be valid, the heir may, notwithstanding, retry the question as to realty, and possibly, as in the case at bar, obtain a verdict and a judgment that the will is invalid. But the remedy for this incongruous and absurd procedure by which judgments diametrically opposed to each other may be recovered in respect to the same will, does not lie with the courts, but with the legislature." When a testator dies, leaving mortgaged real estate only, his heirs or devisees ought to be able to

the

sell that really immediately upon the probate of the will. But the possibility that some dissatisfied heir of the family may bring an action under section 2653-a within two years of the probate (and protract the action for several years) acts as a cloud on the alienability of the property by the heirs or devisees at the very time when liquid assets are most necessary to pay the decedent's debts. The proceeding to sell the real estate of a decedent to pay debts has been very much simplified and made less expensive and cumbersome. The priority of right to letters of administration has been changed so as to place creditors after the public administrator. The section containing exemptions for widow and minor children has been modernized by eliminating "spinning-wheels, weavinglooms, knitting machine," etc. The process and petitions are definitely described and the time in which notices shall be given shortened. The time in which a representative may account and distribute an estate has been shortened to six months. The testimony of a subscribing witness to an uncontested will may be taken before the surrogate of any county where the witness may be, or before the clerk of the Surrogate's Court. Bonds are required of trustees and of executors directed to withhold payments of any fund, unless contrary to the express terms of the will. The suggestions here presented have been submitted to all the surrogates and many members of the bar of this State for criticisms and suggestions. It has been our effort from the views thus obtained, aided by our own experience, to draft a law in such form as will be satisfactory to the courts, as well as to the profession.

ARTICLE 1

THE SURROGATE AND ACTING SURROGATE

Section 1. Short title.

2. Surrogate and acting surrogate; their official designations.
3. Seal of the surrogate and surrogate's court.

4. Surrogate, when not to be counsel.

5. Surrogate liable for clerk's acts.

6. Surrogate, when disqualified.

7. Disqualification; when objection must be taken.

8. Vacancy or disability: who to act as surrogate.

9. If surrogate disqualified who to act.

10. In New York county.

11. Proof of authority.

12. When and how made.

13. How authority superseded.

14. Temporary surrogate; when board of supervisors may appoint.

15. Compensation of acting surrogate.

16. Books to be kept by surrogate.

17. Books to be indexed; notation on margin as to certain decrees.

18. Papers and books to be preserved and bonds filed.

19. What papers to be transmitted to secretary of state or state comptroller.

. 20. Incidental powers of the surrogate.

Section 1. Short title. This act shall be known as the "Surrogate's Court Act." [As amended by L. 1921, ch. 438, § 1.]

EDITORIAL NOTES

Source: New, as inserted by L 1920, ch 928, as amended by L 1921, ch 438, § 1. This act was originally entitled "Surrogate Court Act," but its title was changed to "Surrogate's Court Act" to meet the requirements of the Constitution of the State of New York, article VI, § 16, which recognizes and perpetuates "Surrogates' Courts," but not "Surrogate Courts."

Text in italics is new matter, added by L 1920, ch 928, and L 1921, ch 438, § 1. New York Constitution references: Surrogates' courts, surrogates, their powers and jurisdiction, Const. art. VI, § 16. Star (*) means read Not into HEADLINE in capitals. The special use herein of this simple device makes it possible to annotate alphabetically the precise point of every case by means of a headnote or Headline

and a subnote or Subline followed by a reading note. Each Headline is made from the text of the Section annotated, and is arranged in logical sequence. Each Subline indexes the subject matter of its reading note, and is arranged alphabetically. The Headline and the Subline with its reading note, taken together, state completely the precise point decided, and furnish both a logical analysis and an alphabetical index. The use of such device marks a distinct advance in the art of annotating statutes by avoiding the serious defect, heretofore found in all statutory annotations, of annotating the same or closely related matters under both affirmative and negative headings, like "Particulars granted" and "Particulars not granted," of dividing contrary views of the same or similar facts, even of separating conflicting cases on precisely the same point, and of requiring the lawyer to read all the cases under both

headings to find all the law. Such a division of matter necessarily sacrifices accuracy, clearness and conciseness, as well as time and efficiency, and is never justifiable. Such a defect is caused by using both affirmative and negative headings; it may be avoided, and all related matters be annotated under one heading, by using only affirmative headings and by using the Star (*) to denote the negative. So herein every heading or Headline is affirmative, like "Particulars granted"; the negative is denoted by the Star (*), placed before the case cited which means, reading "Not" into the Headline, "Particulars not granted." For illustration, all unstarred cases show what particulars are granted, and all starred cases show what particulars are "not" granted. Do not confuse the HEADLINE printed in capitals with the Subline printed in lower case black face.

§ 2. Surrogate and acting surrogate; their official designations. 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 surrogate, may be designated as the "special surrogate" of his county. Where an officer, other than the surrogate, or special 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."

EDITORIAL NOTES

Source: CCP § 2472, without change; as revised by L 1914, ch 443, from CCP § 2483; as revised from L 1853, ch. 648, in substance, except that second sentence new. Revisers' Note of 1914: No change in this section, except to insert "special surro

gate" as being an officer who need not add to his official signature "and acting surrogate.'

Star (*) means read Not into HEADLINE in capitals. For explanation and illustration see SCA § 1.

§ 3. Seal of the surrogate and surrogate's court. The seal of the surrogate of each county shall continue to be the seal of the surrogate's court of that county, and must be used as such by an officer who discharges the duties of the surrogate. A description of each of such seals must be deposited and recorded in the office of the secretary of state, unless it has already been done; and must remain of record.

EDITORIAL NOTES

Source: CCP § 2473, without change; as revised by L 1914, ch 443. from CCP § 2507; as revised from 2 RS 221, pt 3, ch 2, tit 1, §§ 3, 4 and 5, as amended by L 1909, ch 65.

Revisers' Note of 1914: No change, except in title.

Star (*) means read Not into HEADLINE in capitals. For explanation and illustration see SCA § 1.

§ 4. Surrogate, when not to be counsel. 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.

EDITORIAL NOTES

Source: CCP 8 2474, without change; as re-
vised by L 1914, ch 443, from CCP § 2495,
except last sentence omitted; as revised
from 2 RS 223, pt 3, ch 2, tit 1, § 13,
amended; as amended by L 1893, ch 686.
Revisers' Note of 1914: Monroe county has
a population of more than 120,000, and
therefore under § 20, art VI, State Consti-
tution, the last sentence of former CCP
§ 2495 is no longer necessary.
Star (*) means read Not into HEADLINE
in capitals. For explanation and illustra-
tion see SCA § 1.

FOR WHOM SURROGATE CANNOT ACT-
Administrator: in action to recover for neg-
ligent killing of intestate (Merrill 223 NY
667).

Executor: in mortgage foreclosure (Wigand
8 AbNC 260).

MATTERS IN WHICH SURROGATE CAN-
МОТ АСТ-

Sale of decedents' realty: to pay judgment recovered in action in which he was plaintiff's attorney (Darling 15 Hun 542). ADMINISTRATOR SURCHARGED WITH COUNSEL FEE PAID SURROGATE— Negligent killing of intestate: in action to recover for (Merrill 151 AD 785, 136 NYS 884).

RECOVERY OF COUNSEL FEE PAID SUR-
ROGATE ALLOWED-

By administrator: whose accounts sur-
charged with amount paid for legal serv-
ices (Merrill 151 NYS 794).

§ 5. Surrogate liable for clerk's acts. A surrogate hereafter elected or appointed, and the sureties on his official bond, are liable for any act of the clerk or deputy clerk

of the surrogate's court in the discharge of his official duties, during the surrogate's term of office, as if the act were performed by the surrogate. The surrogate may take security from the clerk or deputy clerk, or either of them, to indemnify him against the liability created by this section.

EDITORIAL NOTES

Source: CCP § 2475, without change; as revised by L 1914, ch 443, from CCP § 2511, identical with CCP § 2510 as it existed in 1893; as revised from L 1857, ch 789, § 5; as amended by L 1893, ch 686, and by L 1907, ch 209.

Revisers' Note of 1914: No change in this section.

Star (*) means read Not into HEADLINE
in capitals. For explanation and illustra-
tion see SCA § 1.

FOR WHOSE ACTS SURROGATE LIABLE-
Infant's guardian: appointed as individual
and not as clerk (*Duncan 99 Mis 97, 164
NYS 97).

§ 6. Surrogate, when disqualified. In addition to his general disqualifications as a judicial officer, a surrogate is disqualified from acting upon an application for probate of a will, where he is a subscribing witness, or is necessarily examined or to be examined as a witness.

A surrogate is also disqualified in any matter in his court where he files a certificate that his relations to the parties or the subject matter are such that it is improper for him to act.

EDITORIAL NOTES

Source: CCP § 2476, without change; as revised by L 1914, ch 443, from CCP § 2496; as revised from 2 RS 79, pt 2, ch 6, tit 2, § 48, and L 1847, ch 470, § 32 pt, and L 1871, ch 859, § 8 pt.

Revisers' Note of 1914: In the third line
after "will" insert part of old subdivision
2, making a continuous sentence. Repeal
the remainder of the section as the same is
covered by the Judiciary Law. The new
matter is added because the relation of the
surrogate to persons doing business in his
court. and to the subject matter, especially,
where he is allowed to practice, is often
such that he ought not to be obliged to act,
Star (*) means read Not into HEADLINE
in capitals. For explanation and illustra-
tion see SCA § 1.

SURROGATE DISQUALIFIED—
Acting as attorney: in

same manner

in

which he acted as surrogate (Wigand 8

AbNC 260); in procuring judgment on which order of sale based, acting on application for (Darling 15 Hun 542); for festator at time of death (*PvWeiant 30 Hun 475).

Appointment of brother: as guardian (*Van Wagonen 69 Hun 365, 23 NYS 636). Church warden of church: to which bequest is made (Hopkins 6 Dem 13, 3 NYS 661). Receipt of funds: belonging to estate of which he is custodian (*Hancock 91 NY 284).

Refusal to file certificate: not reviewable (Carter 193 AD 356, 184 NYS 40). Subscribing witness: liable to be called as witness (PvWeiant 30 Hun 475). OF CERTIFICATE

NECESSARY—

DISQUALIFICATION

If "interested": (*Carter 193 AD 356, 184
NYS 40).

§ 7. Disqualification; when objection must be taken. An objection to the power of a surrogate to act, based upon a disqualification, is waived by an adult party to a special proceeding unless it is taken at or before the joinder of issue by that party, or, where an issue is not framed, at or before the submission of the matter or question to the surrogate.

EDITORIAL NOTES

Source: CCP § 2477, without change; as re-
vised by L 1914, ch 443, from CCP § 2497;
as revised from 2 RS 276, pt 3, ch 3, tit 1,
§ 14, added by L 1844, ch 300, § 6.
Revisers' Note of 1914: Change puts all dis-
qualifications that can be waived on the
same footing, leaving no useless exceptions
to be hunted out,

Star (*) means read Not into HEADLINE
in capitals. For explanation and illustra-
tion see SCA § 1.

OBJECTION WÄIVED-
Joining issue: before making (Carter 193
AD 356, 184 NYS 40; Hopkins 6 Dem 13, 3
NYS 661).

§ 8. Vacancy or disability; who to act as surrogate. Where in any county, except New York, the office of surrogate is vacant; or the surrogate is disabled by reason of sickness, absence or lunacy, or is disqualified in a particular matter, and special provision 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.

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