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 property within that county, and no other; or leaving personal property which has since his death, come into that county, and no 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 fourth of this chapter, is situated within that county, and no other.

Former § 2476 of this Code. From 2 R. S. 73 (Part 2, c. 6, tit. 2), § 23; L. 1837, c. 260, § 1.

§ 2516. Concurrent jurisdiction of two or more surrogates.

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 surrogates' courts of those counties have concurrent jurisdiction, exclusive of every 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 courts so possessing concurrent jurisdiction, the jurisdiction of that court excludes that of the other.

Former § 2477 of this Code. From 2 R. S. 73, § 24.

§ 2517. Jurisdiction, how affected by locality of debts.

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 a non-resident of the state, or a foreign or a domestic government, state, county, public officer, association, or corporation, is, for the purpose of so conferring jurisdiction, regarded as personal property at the place where the bond, note or other instrument is, either within or without the state.

Former § 2478 of this Code.

700

TITLE II.

Special proceedings, pleadings, process and its service; appearance; trial by court or jury; taking and preserving testimony; orders and decrees, their effect and enforcement; letters, their requisites, effect, issue and revocation; bonds, their requisites, approval, prosecution and discharge; sureties, their rights and obligations.

Article 1. Special proceedings, how begun; pleadings and process; service of citation and other process, and proof thereof.

2. Appearance, appointment of special guardian; consolidation of proceedings. Reference, trial, decision, exceptions and testimony. Orders and decrees, effect and enforcement; docketing, discharging and staying.

3. Letters, their requisites, priority and authority; how, when and to whom granted; revocation. Removal of trustee.

4. Bonds and undertakings; approval, recording, prosecution and discharge; sureties, their release, rights and obligations.

ARTICLE FIRST.

Special proceedings, how begun; pleadings and process; service of citation and other process, and proof thereof.

Sec. 2518. Proceeding commenced by petition; statute of limitations.

2519. Written pleadings required.

2520. Verification thereof.

2521. General contents of petition.

2522. Process; how executed and returnable.

2523. General contents of citation.

2524. General contents of citation; persons constituting a class; persons unknown or whose names or parts of names are unknown.

2525. Citation; how served within state.

2526. Service personally without the state, or by publication; when ordered. 2527. Application for order permitting service by publication; or personally without the state.

2528. Order, when and how made; contents thereof.

2529. When service of citation shall be made; manner of service without the state or by publication.

2530. Id.; upon infant, etc.; additional requirement in certain cases. 2531. Proof of service of citation, subpoena, etc.

2532. Publication of citation, etc

§ 2518. Proceeding commenced by petition; statute of limitations. Every proceeding in surrogate's court shall be commenced by the filing of a petition. In any case where the time in which to begin such proceeding is limited, a citation, or an order to show cause, on such petition must, within sixty days thereafter, be issued and be served, as prescribed in this chapter 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 this chapter.

From former §§ 2516, 2517 of this Code.

§ 2519. Written pleadings required.

All petitions, answers, and objections shall contain a plain and concise statement of the facts constituting the claim, objection or defence, and a demand for the decree, order, or other relief, to which the party supposes himself to be entitled, and shall be duly verified. The surrogate may require that a copy thereof be served upon any person interested in such manner as he may direct. A party who

fails to comply with such requirement may be treated as a party in default.

Former § 2533 of this Code, modified.

§ 2520. Verification thereof.

The provisions of sections 523, 524, 525 and 526 of this act apply to a verification made pursuant to this chapter, and to the petition or other paper so verified, where they can be so applied in substance, without regard to the form of the proceeding.

Former § 2534 of this Code.

§ 2521. General contents of petition.

A petition must substantially set forth:

1. The title of the proceeding, the name and residence of the person to whose estate or fund the proceeding relates, and the name and residence of the petitioner.

2. The facts upon which the jurisdiction of the court depends to entertain the application and grant the relief asked for.

3. So far as they can be ascertained with due diligence, the names and post-office addresses of all the persons interested in the proceeding who are required to be cited upon the application, or concerning whom the court is required to have information; and if the name or post-office address of any of such persons is unknown, the facts which show what effort has been made to ascertain the same.

4. That there are no other persons than those mentioned interested in the application or proceeding.

5. A request for the relief or action of the court to which the petitioner deems himself entitled.

Before any process shall be issued on a petition the petitioner may be required to show by his petition or otherwise the following

matters:

If any person named be an infant there shall be set forth:

a. His age, and whether or not he has a general or testamentary guardian.

b. Whether or not his father, or if he be dead, his mother is living, giving the name and post-office address of such person.

c. The person with whom such infant resides and his post-office address.

If any person named be an adjudged, or an alleged, incompetent there shall be set forth:

a. The name and post-office address of the committee, if any, and the name and post-office address of the person or institution having the care or custody of such incompetent.

b. The facts regarding his incompetency, and the name and postoffice address of a relative or friend having an interest in his welfare. If any of such persons be included in a class, and his name be unknown there shall be set forth:

The names and post-office addresses of those persons of the class who are known, and a general description of all other persons belonging to such class, showing their connection with the decedent or fund and their interest in the property or matter in question.

If any of such persons be unknown or his name be unknown there shall be set forth:

A general description of such person showing his connection with

the decedent or fund, and his interest in the property or matter in question.

New. See former §§ 2518, 2662 of this Code.

§ 2522. Process; how executed and returnable.

The process of the surrogate's court shall be a citation to show cause, an order to show cause, and such other process and mandate as the surrogate is or shall be authorized by law to issue and employ in the performance of the duties imposed on him and in the enforcing of his orders and decrees.

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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's court from which it was issued, and may be served or executed 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.

Former § 2515 of this Code, in part. From L. 1837, c. 460, §§ 66, 67.

§ 2523. General contents of citation.

A citation must substantially set forth:

1. The name and residence of the petitioner, and of the person to whose estate or fund the proceeding relates.

2. The names of all the persons to be cited who have not waived its issue and service, or have not appeared, so far as the same can be ascertained.

3. The time and place when the citation is returnable, which time must not be more than four months after the date thereof. 4. The object of the proceeding in regard to which the persons cited are required to show cause.

5. The date when the citation issues.

6. It must be attested in the name of the surrogate, and by the seal of his court.

New. See former § 2519 of this Code.

§ 2524. General contents of citation; persons constituting a class; persons unknown or whose names or parts of names are unknown.

In addition to the requirements of the last section, a citation must substantially set forth:

1. Where the names of some persons to be cited comprising a class are unknown, the names of those persons of the class who are known, and a general description of all other persons belonging to such class, showing their connection with the decedent and their interest in the property or matter in question.

2. Where the persons to be cited are unknown, a general description of such persons showing their connection with the decedent and their interest in the property or matter in question.

In either of said cases where the petitioner is ignorant of the name of a person to be cited, he may designate that person in the citation by a fictitious name or by so much of his name as is known, adding a description identifying the person intended.

3. In every case where it appears that there is no heir-at-law or next of kin, as the case may be; or that it is not known whether or not there be such; or when all of the parties interested are non

resident aliens, the citation shall be issued to the attorney-general of the state.

Former §§ 2518, 2616 of this Code, in part. From 2 R. S. 74 (Part 2, c. 6, tit. 2), § 26; L. 1908, c. 272.

§ 2525. Citation; how served within state.

Personal service of a citation within the state shall be made as follows:

Upon an adult person, or upon an infant of the age of fourteen years or upwards, by delivering a copy thereof to the person to be served.

Upon an infant under the age of fourteen years, by delivering a copy thereof to the infant in person, and to his father, mother or guardian; or if there be none within the state, or if the infant does not reside with a parent, to the person having the care and control of him, or with whom he resides, or in whose service he is employed. Upon a person judicially declared to be incompetent to manage his affairs by reason of lunacy, idiocy, or habitual drunkenness, or upon a corporation by delivering a copy thereof in the manner prescribed for personal service of a summons upon such a person, or upon a corporation in article first of title first of chapter fifth of this act. Upon a public officer by delivering a copy thereof to such officer, or to one of his duly constituted deputies.

Where it appears, by affidavit, to the satisfaction of the surrogate from whose court a citation is issued, that proper and diligent effort has been made to serve it as hereinbefore prescribed in this section upon a resident of the state whose place of residence or place of business is known, and that the person to be served cannot be found at his residence or place of business, and cannot be elsewhere served within the state within a reasonable time, or, if found, that he evades service, so that it cannot be made; the surrogate may make an order directing that service thereof be made, as prescribed in section 436 of this act; and the provisions of that section and of section 437 of this act, relating to the service of a summons, apply to the service of a citation, pursuant to an order made as prescribed in this section. Where it is necessary in any special proceeding to cite known creditors, and it appears that the number of creditors or persons claiming to be creditors, residing within the state of New York, upon whom citation is required to be served, exceeds fifty, service thereof may be made upon them by publication thereof in such newspaper or newspapers and for such a length of time as shall be fixed by the surrogate, and by the mailing of a copy of such citation to each of them by deposit of a copy thereof in the post-office, properly enclosed in a postpaid sealed wrapper addressed to each of them at his last known post-office address as stated in the order, at least twenty days prior to the return day thereof.

From §§ 2520, 2521, 2526 of this Code.

§ 2526. Service personally without the state, or by publication; when ordered.

The surrogate from whose court a citation is issued may make an order directing the service thereof personally without the state, or by publication, in either of the following cases:

1. Where it is to be served upon a foreign corporation, or upon a person who is not a resident of the state.