ARTICLE THIRD. Appeal; when, how and to what court taken, and power of appellate court; undertaking to perfect appeal and stay execution; probate of heirship; definition and application of other sections to this chapter. Sec. 2754. Appeal; when and to what court it may be taken. 2755. Who must be made parties. 2756. Time to appeal; how taken. 2757. Appeal may be on the law or the facts; case to be made; reversal. 2758. Certain provisions of chapter twelve made applicable. 2759. Security to perfect appeal. 2760. Id.; where decree is for money or delivery of property, etc. 2761. Security to stay proceedings in case of commitment. 2762. Amount and requisites of undertaking; action thereon. § 2754. Appeal; when and to what court it may be taken. An appeal to the appellate division of the supreme court may be taken from a decree of a surrogate's court, or from an order affecting a substantial right, made by a surrogate, or by a surrogate's court in a special proceeding, by any party aggrieved thereby, except where the decree or order was rendered or made upon his default in appearing. Former §§ 2568, 2570 of this Code. From 2 R. S. 609 (Part 3, c. 9, tit. 3), § 104; Id., 711, § 118; Id., 62, § 35; L. 1895, c. 946. § 2755. Who must be made parties. Each party who has appeared in the special proceeding in the surrogate's court, must be made a party to the appeal. A person not a party, may be brought in by an order of the appellate court, made after the appeal is taken, in such manner as the order may prescribe. Former § 2573 of this Code, modified. § 2756. Time to appeal; how taken. An appeal must be taken within thirty days after the service, upon the appellant, or upon the attorney, if any, who appeared for him in the surrogate's court, of a copy of the decree, or order from which the appeal is taken, and a written notice of the entry thereof, except that the party entering such decree or order shall not be entitled to further notice to limit his time to appeal. An appeal must be taken by the service upon each party to the appeal, other than the appellant, and upon the surrogate, or the clerk of the surrogate's court, of a written notice, referring to the decree or order appealed from, and stating that the appellant appeals from the same, or from a specified part thereof. Where a party to the special proceeding in the court below appeared in person, the notice of appeal must be personally served upon him; where he appeared by an attorney, it must be served personally, either upon him or upon his attorney. Former §§ 2572, 2574 of this Code, consolidated and modified. From 2 R. S. 66 (Part 2, c. 6, tit. 1), § 55; Id., 608, §§ 90, 102, 105–107. JUST CT'S § 2757. Appeal may be on the law or the facts; case to be made; reversal. The appeal may be taken upon questions of law, or upon the facts, or upon both. If it is taken from a decree rendered upon the trial by the surrogate, or by the surrogate and a jury, of an issue of fact, it must be heard upon a case, to be made and settled by the surrogate, as prescribed by law, for the making and settling of a case upon an appeal in an action. Such appeal brings up for review, by each court to which the appeal is carried, each decision, to which an exception is duly taken by the appellant, as prescribed in section 2542. But such a decree or order shall not be reversed, for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant vas necessarily prejudiced thereby. Former § 2576 of this Code, with part of former § 2545. § 2758. Certain provisions of chapter twelve made applicable. The provisions of the following sections of this act, to wit: sections 1295 to 1299 both inclusive, and 1301 to 1303, and 1305 to 1309, both inclusive, apply to an appeal taken as prescribed in this article, and for the purposes of such application the word "judgment" shall mean a decree. Former § 2575 of this Code. § 2759. Security to perfect appeal. To render a notice of appeal effectual for any purpose, except in a case specified in the next section, or where it is specially prescribed by law, that security is not necessary to perfect the appeal, the appellant must give a written undertaking, with at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars. Former § 2577 of this Code. See 2 R. S. 66 (Part 2, c. 6, tit. 1), § 56; Id., 10, § 108. § 2760. Id.; where decree is for money or delivery of property, etc. In every case except one in which the letters of an executor, administrator or guardian have been revoked, or a trustee has been removed a notice of appeal by an executor, administrator, testamentary trustee, guardian or other person appointed by the surrogate's court, from a decree, directing him to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property; or by an executor or administrator from an order granting leave to issue an execution against him, as prescribed in section 1825 of this act, does not stay the execution of the decree appealed from unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or, as the case requires will deposit or distribute the money, or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed. Former § 2578 of this Code. From 2 R. S. 116 (Part 2, c. 6, tit. 5), § 21; L. 1870, c. 359, § 12; L. 1882, c. 399. § 2761. Security to stay proceedings in case of commitment. An appeal from a decree or an order, directing the commitment of an executor, administrator, testamentary trustee, guardian, or other person appointed by the surrogate's court, or an attorney or counsel employed therein, for disobedience to a direction of the surrogate, or for neglect of duty; or directing the commitment of a person refusing to obey a subpoena, or to testify, when required according to law; does not stay the execution of the decree or order appealed from, unless the appellant gives an undertaking with at least, two sureties, in a sum therein specified, to the effect that if the decree or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will, within twenty days after the affirmance or dismissal, surrender himself in obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to be committed. Former § 2579 of this Code, in part. From 2 R. S. 610, 611 (Part 3, c. 9, tit. 3), § 111-115. § 2762. Amount and requisites of undertaking; action thereon. The sum specified in an undertaking, executed as prescribed in either of the last two sections, must be fixed by the surrogate, or by a judge of the appellate court, who may require proof, by affidavit, of the value of any property, or of such other facts as he deems proper. An undertaking, given as prescribed in the last three sections, must be to the people of the state; must contain the name and residence of each of the sureties thereto; must be approved by the surrogate or a judge of the appellate court; and must be filed in the surrogate's office. The surrogate may, at any time in his discretion, make an order authorizing any person aggrieved to bring an action upon the undertaking, in his own name, or in the name of the people. Such action may be prosecuted in the same manner, and with the same effect as an action upon an administrator's bond; and the proceeds of the action must be paid or distributed as directed by the surrogate, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them, and the balance, if any, must be paid into the surrogate's court. Former §§ 2580, 2581, of this Code, modified; the last sentence is from former § 2579. § 2763. Power of appellate court; further testimony. Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact, which the surrogate had; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee. The appellate court may reverse, affirm, or modify, the decree or order appealed from, and each intermediate order, specified in the notice of appeal, which it is authorized by law to review, and as to any or all of the parties; and it may, if necessary or proper, grant a new trial or hearing. Upon an appeal from a determination of the surrogate, made upon an application pursuant to subdivision six of section 2490 the appellate court has the same power as the surrogate, and his determination must be reviewed as if an original application were made to that court. The decree or order appealed from may be enforced, or restitution may be awarded, as the case requires, as prescribed in title first of chapter twelfth of this act, with respect to an appeal from a judgment. Former §§ 2481, 2586, 2587 of this Code. § 2764. Appeal; proceedings thereupon. In the appellate division of the supreme court the order made upon an appeal from a decree or an order of a surrogate's court must be entered with the clerk of the appellate division, and a certified copy thereof annexed to the papers transmitted from the court below upon which the appeal was heard, must be transmitted to the court from which the appeal was taken, and the court below shall enter the judgment or order necessary to carry the determination of the appellate division into effect. Former § 2585 of this Code. See L. 1895, c. 946. 798 ARTICLE FOURTH. Probate of heirship; definitions, and application of other sections to this chapter. Sec. 2765. Heir, etc., may apply to establish heirship. 2767. Decree to be recorded; effect thereof. 2768. Definition of expressions used in this chapter. 2769. Application of chapter; confirmation of previous acts. 2770. Certain provisions made applicable to proceedings in surrogate's courts. 2771. Effect of this chapter on laws applicable to certain counties. § 2765. Heir, etc., may apply to establish heirship. Where a person, seized in fee of real property within the state, dies intestate, or without having devised his real property, his heirs, or any of them, or any person deriving title from or through such heirs, or any of them, may present to the surrogate's court which has acquired jurisdiction of the estate, or, if no surrogate's court has acquired such jurisdiction, then to the surrogate's court of the county where the real property, or any part thereof is situated, a petition, describing the real property, setting forth the facts upon which the jurisdiction of the court depends, and the interest or share of the petitioner, and of each other heir of the decedent, in the real property, and praying for a decree establishing the right of inheritance thereto, and that all the heirs of the decedent may be cited to show cause why the prayer of the petition should not be granted. Upon the presentation of such a petition a citation must be issued accordingly, except in a case where the petitioner was a party to a judicial settlement, the decree upon which determined the rights of the parties to such real estate. Former § 2654 of this Code. From L. 1873, c. 552, §§ 1, 2; L. 1892, c. 115. § 2766. What facts to be ascertained; decree thereupon. Upon the return of the citation, the surrogate's court must hear the allegations and proofs of the parties and determine all the issues raised. The petitioner must establish the fact of the decedent's death; the place of his residence at the time of his death; his intestacy, either generally, or as to the real property in question; the heirs entitled to inherit the property in question; the name, age, residence and relationship to the decedent, of each; and the interest or share of each in the property. The surrogate, when these facts are established, must make a decree, describing the property, and declaring that the right of inheritance thereto has been established to his satisfaction, in accordance with the facts, which must be recited in the decree. Former § 2656 of this Code. From L. 1873, c. 522, §§ 1, 2. § 2767. Decree to be recorded; effect thereof. A certified copy of a decree, made as prescribed in the last section may be recorded in the office of the clerk, or of the register, as the case requires, of each county in which the real property is situated, as prescribed by law for recording a deed, and, from the time when such copy is so recorded, the decree, or the record thereof, is con |