any power specified in this section, but the prohibition does not affect the validity of any act of the clerk done in disregard of the prohibition.

L. 1863, ch. 362, 9 (6 Edm. 127); L. 1874, ch. 456 (9 Edm. 958); L. 1877, ch. 206, 23; ch. 274, 22 1, 2 and 3; L. 1873, ch. 3. McNaughton v. Chave, 5 Abb. N. C: 226; Munro's Estate, 15 Abb. 363; Roderigas v. East R. Sav. Inst., 76 N. Y. 316.

2510. Id.; surrogate liable for his acts. A surrogate, hereafter elected or appointed, and the sureties in his official bond, are liable for any act of the clerk of the surrogate's court in the discharge of his official duties, during the surrogate's term of office, as if the act was performed by the surrogate. The surrogate may take security from the clerk, to indemnify him against the liability created by this section.

L. 1857, ch. 789, 25, amended so as to extend to entire State.

§ 2511. Clerk, etc., not to be appraiser, attorney, etc.-A clerk, or other person employed in any capacity,. in a surrogate's office, shall not act as an appraiser, as attorney or counsel, or as referee or special guardian, in any matter before the surrogate.

L. 1873, ch. 225, part of 1 (9 Edm. 587).

2512. Stenographer for surrogate's courts in NewYork and Kings.-The surrogate of each of the counties of New-York and Kings must appoint, and may, for cause, remove, a stenographer for his court, who is entitled to a salary fixed by law, and to be paid as the salaries of clerks in the surrogate's office are paid. Code of Proc., part of 256.

2513. Id.; in other counties. The surrogate of each county, except New-York and Kings, may, in his discretion, appoint, and at pleasure remove, a stenographer for his court, who shall be paid a reasonable compensation, certified by the surrogate, in every case in which he takes notes of testimony. Such compensa tion is part of the costs of the proceedings.

L. 1871, ch. 874, 21 and 2 (9 Edm. 231).

2514. Definition of expressions used in this chapter. In construing the provisions of this chapter, the following rules must be observed, except where a contrary intent is expressly declared in the provision to be construed, or plainly apparent from the context thereof:

1. The word, "intestate", signifies a person who died without leaving a valid will; but where it is used with respect to particular property, it signifies a person who died without effectually disposing of that property by will, whether he left a will or not.

2. The word, "assets", signifies personal property applicable to the payment of the debts of a decedent

3. The word, " debts ", includes every claim and demand, upon which a judgment for a sum of money, or directing the payment of money, could be recovered in an action; and the word, "creditor”, includes every person having such a claim or demand.

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, or 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 person's required to be 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 determins. tion, and no appeal therefrom is pending.

12. The term, "next of kin ", includes all those enti tled, under the provisions of law relating to the distri bution of personal property, to share in the unbe. queathed 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.

New, except subd. 4; 2 R. S. 68, 271 (2 Edm. 70) and subd. 13: 1 R. S. 754,127. (1 Edm. 706). Sellis' Case, 4 Abb. Pr. 472 8. C.. Babcock v. adf. 218; Glover v. Holly, 2 id. 291; Guild v. Peck, 11 Paige, Ellis, 1 Bonell v. Gregg, 1 Barb. Ch. 469; Hallett v. Hare, 5 Paige, 315; 475: Westerdes, n., Murdock v. Ward, 67 N. Y. 387; Luce v. Dunham,

18 Abb. N. S. 4.

as v. Keteltas, 72 id. 312.

id. 36; Ketelex.

in! * See 3 Civ. Pro. 125,

TITLE II.

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

ARTICLE 1. Process, and service thereof; appearance, and Joinder of issues; 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.

ARTICLE FIRST.

PROCESS, AND SERVICE THEREOF; APPEARANCE, AND JOINDER OF ISSUE; MISCELLANEOUS REGULATIONS OF PRACTICE.

SEC. 2515. Process; how executed and returnable. 2516. Proceedings to be commenced by citation.

2517. Id.; within the statute of limitations.

2518. Persons constituting a class; when to be cited; citation when some are unknown.

2519. Contents of citation.

2520. Citation; how served in the State.

2521. Substitute for personal service upon a resident.

2522. Service by publication, etc.

2523. Id.; upon persons unknown, etc.

2524. Order; when and how made: contents thereof.

2525. What time required for delivery of copy, etc.

2526. Service upon a corporation, infant, lunatic, etc.

2527. Id.; upon infant, etc.; additional requirements in certain

cases.

2528. Appearance; how made, and effect thereof.

2529. Surrogate's father or son not to practice before him.

2530. Special guardian: when to be appointed.

2531. Notice of proceedings to appoint special guardian,

2532. Proof of service of citation, subpoena, etc.

2533. Written pleadings may be required.

2534. Verification thereof.

2535, 2536. Publication of citation, etc.

2537. Money paid into court and securities taken, how disposed of, 2538. Certain provisions made applicable to proceedings in surro gates' courts.

§ 2515. Process; how executed and returnable. 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 exe cuted 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.

48.

L. 1837, ch. 460, 22 66, 67 (4 Edm. 498). People v. Pelham, 14 Wend.

$2516. Proceedings to be commenced by citation. -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.

New. See 2525 and 2533, post. Wetmore v. Parker, 52 N. Y. 450; 8. c., 7 Lans. 121.

§ 2517. Id., within the statute of limitations. — 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 peti tioner 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 2520 of this act, upon the adverse party, or upon one of 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 2522 of this act. New. See 22 399 and 400, ante.

2518. Persons constituting a class; when to be cited; citation when some are unknown. Where it is prescribed, in any provision of this chapter, that a petitioner must pray that a person, or that creditors, next of kin, legatees, heirs, devisees, 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 discretion, issue a subpoena, requiring any