In re the Probate of Porter's Will

New York Surrogate's Court

In re the Probate of Porter's Will

1 Pow. Surr. 94, 1 Misc. 489, 22 N.Y.S. 1063, 54 N.Y. St. Rep. 302

CourtNew York Surrogate's Court

DecidedJanuary 15, 1893

StatusPublished

Cited by1 cases

This text of 1 Pow. Surr. 94 (In re the Probate of Porter's Will) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Probate of Porter's Will, 1 Pow. Surr. 94, 1 Misc. 489, 22 N.Y.S. 1063, 54 N.Y. St. Rep. 302 (N.Y. Super. Ct. 1893).

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Opinion

Coffin, S.

The question as to the proper service of the citation is jurisdictional. Section 2520 of the Code provides that, “except where special provision is otherwise made by law, service of a sitation within the State” must be made upon a person at least eight or fifteen days, according to the place of service, before the return day, personally, or by leaving a copy at his residence, etc. Sections 2522, 2524, direct the mode of service upon a non-resident of the State, which is by publication for six weeks, or at the option of the petitioner, by personal service, without the State, at least thirty days before the return day. This case then comes within the exception mentioned in section 2520, and renders a service of the citation in this manner under that section void. That section only prescribes the mode of service upon residents. The other sections, supra, prescribe the manner of service upon a non-resident of the State, and, as none [95]*95other is provided, unless so served, the court fails to obtain jurisdiction of the person. The object of the statute is undoubtedly afford the person served time to make his arrangements to attend on the return day. It is his rig’ht, and, residing out of the State, if personal service be made upon him within the State eight, fifteen or thirty days before the return day, it is a failure to comply with the statute, as well as the order directing the mode of service. Had the petitioner here filed admissions of due service by these non-residents, or had they appeared in person, making no objection, or had a duly executed and acknowledged waiver of the issuing and service of the citation upon them been presented within the petition, and the fact stated therein, the difficulty would have been obviated. In the latter case there would have been no necessity for an order of service by publication. As there must be proof of due service of the citation upon all of the persons entitled thereto, or such service be obviated in one of the modes indicated above before the examination of the subscribing witnesses can he proceeded with, this matter must stand over until all of the parties are properly before the court.

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Coffin, S.

The question as to the proper service of the citation is jurisdictional. Section 2520 of the Code provides that, “except where special provision is otherwise made by law, service of a sitation within the State” must be made upon a person at least eight or fifteen days, according to the place of service, before the return day, personally, or by leaving a copy at his residence, etc. Sections 2522, 2524, direct the mode of service upon a non-resident of the State, which is by publication for six weeks, or at the option of the petitioner, by personal service, without the State, at least thirty days before the return day. This case then comes within the exception mentioned in section 2520, and renders a service of the citation in this manner under that section void. That section only prescribes the mode of service upon residents. The other sections, supra, prescribe the manner of service upon a non-resident of the State, and, as none [95]*95other is provided, unless so served, the court fails to obtain jurisdiction of the person. The object of the statute is undoubtedly afford the person served time to make his arrangements to attend on the return day. It is his rig’ht, and, residing out of the State, if personal service be made upon him within the State eight, fifteen or thirty days before the return day, it is a failure to comply with the statute, as well as the order directing the mode of service. Had the petitioner here filed admissions of due service by these non-residents, or had they appeared in person, making no objection, or had a duly executed and acknowledged waiver of the issuing and service of the citation upon them been presented within the petition, and the fact stated therein, the difficulty would have been obviated. In the latter case there would have been no necessity for an order of service by publication. As there must be proof of due service of the citation upon all of the persons entitled thereto, or such service be obviated in one of the modes indicated above before the examination of the subscribing witnesses can he proceeded with, this matter must stand over until all of the parties are properly before the court.

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Bluebook (online)

1 Pow. Surr. 94, 1 Misc. 489, 22 N.Y.S. 1063, 54 N.Y. St. Rep. 302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-probate-of-porters-will-nysurct-1893.

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