ARTICLE XXII. APPEALS. Section 730. When party may appeal. 731. When person not a party may appeal. 732. Parties to appeal; how designated; title of cause. 733. Appeal when adverse party has died. 734. Appeal; to what court taken. 735. Intermediate order, how reviewed. 736. Time to appeal. 737. Who must be made parties. 738. Appeal; how taken. 739. Defects in proceedings may be supplied. 740. Appeal may be on the law or the facts; case to be made. 741. Security to perfect appeal. 742. Security where decree is for money or delivery of property. 743. Security to stay proceedings in case of commitment. 744. Amount of undertaking; how fixed. 745. Requisites of undertaking. 746. Security may be waived. 747. Deposit in lieu of undertaking. 748. Undertaking must be filed. 749. New undertaking to be given, when sureties are solvent. 750. How far decree suspended by appeal. 751. Decree, when not stayed. 752. Perfected appeal stays proceedings in other cases. 753. Proceedings on appeal. 754. Power of appellate court; further testimony. 755. Judgment or order on appeal. 756. Award of jury trial on reversal in probate cases. 757. Costs of appeal. 758. When action on undertaking not to be brought. 759. Proceedings, when party dies pending appeal. 761. Effect of appeal. Section 730. When party may appeal.-Any party aggrieved may appeal from a decree or an order of a surrogate's court, in a case prescribed in this article, except where the decree or order of which he complains was rendered or made on his default. [Code, § 2568, without change.] § 731. When person not a party may appeal.-A creditor of, or person interested in, the estate or fund affected by the decree or order, who was not a party to the proceeding but was entitled by law to be heard therein on his application; or who has acquired, since the decree or order was made, a right or interest which would have entitled him to be heard if it had been previously acquired; may intervene and appeal as prescribed in this article. The facts which entitle such a person to appeal, must be shown by an affidavit, which must be filed and a copy thereof served with the notice of appeal. [Code, § 2569, without change.] § 732. Parties to appeal; how designated; title of cause.The party or person appealing is designated as the appellant and the adverse party as the respondent. After an appeal is taken to another court, the name of the appellate court must be substituted for that of the court below in the title of the proceeding, and in any case the name of the county if it is mentioned, may be omitted, otherwise the title shall not be changed in consequence of the appeal. [Code, § 1295, applied to practice in surrogate's court.] § 733. Appeal when adverse party has died.—Where the adverse party has died since the making of the order or the entry of the decree appealed from, or where the decree appealed from was entered after his death, in a case prescribed by law, an appeal may be taken as if he was living; but it cannot be heard until the heir, devisee, executor, or administrator, as the case requires, has been substituted as the respondent. In such a case an undertaking required to perfect the appeal or to stay the execution of the decree or order appealed from, must recite the fact of the adverse party's death, and the undertaking enures, after substitution, to the benefit of the person substituted. [Code, § 1297, applied to practice in surrogate's court.] § 734. Appeal; to what court taken.-An appeal to the ap pellate 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 proceeding. [Code, § 2570, without change.] § 735. Intermediate order, how reviewed.-An appeal taken from a decree brings up for review each intermediate order, which is specified in the notice of appeal and necessarily affected the decree, and which has not already been reviewed by the appellate court on a separate appeal taken from that order. [Code, § 2571, without change.] § 736. Time to appeal.-An appeal by a party must be taken within thirty days after the service, on the appellant or on 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. An appeal by a person who was not a party, taken as prescribed in this article, must be taken within three months after the entry of the decree or order, unless the appellant's title or interest in the fund or estate was acquired by means of an assignment or conveyance from a party; in which case the appeal must be taken within the time limited for the taking thereof by the assignor or grantor. [Code, § 2572, without change, except the insertion of the words (6 or interest in the fund or estate" after the word "title" in the second sentence.] § 737. Who must be made parties. Each party to the proceeding in the surrogate's court and each person not a party, who has or claims to have, in the subject-matter of the decree or order, a right or interest which is directly affected thereby, and which appears on the face of the papers presented in the surrogate's court or has become manifest in the course of the proceedings taken therein, must be made a party to the appeal. A person not a party, but who must be made a party as prescribed in this section, may be brought in by an order of the appellate court made after the appeal is taken; or the appeal may be dismissed on account of his absence. The appellate court may prescribe the mode of bringing in such a person, by publication, by personal service or otherwise. But this section does not require a person interested, but not a party, to be brought in, if he was legally represented or was duly cited in the court below. [Code, § 2573, without change.] § 738. Appeal; how taken.-An appeal must be taken by serv ing within the state on each party to the proceeding other than the appellant and on the surrogate, or the clerk of the surrogate's court, 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 proceeding in the court below appeared in person, the notice of appeal must be personally served on him; where he appeared by an attorney, it must be served personally either on him or on his attorney. Where a party who was duly cited did not appear in the surrogate's court, notice of appeal must be served on him personally, if he can with due diligence be found within the county; otherwise it may be served by depositing it, indorsed with a direction to the party, with the surrogate or the clerk of the surrogate's court. Where a person to be served cannot with due diligence be found to make personal service on him as prescribed in this section, the surrogate or a justice of the supreme court may by order prescribe such a mode of service as he thinks proper; and service in that mode has the same effect as personal service. [Code, § 2574, without change.] § 739. Defects in proceedings may be supplied.-Where the appellant, seasonably and in good faith, serves the notice of ap peal either on the clerk or on the adverse party or his attorney, but omits through mistake, inadvertence, or excusable neglect to serve it on the other, or to do any other act necessary to perfect the appeal or to stay the execution of the decree or order appealed from, the court in or to which the appeal is taken, on proof by affidavit of the facts may, in its discretion, permit the omission to be supplied or an amendment to be made, on such terms as justice requires. [Code, § 1303, applied to practice in surrogate's courts.] - § 740. Appeal may be on the law or the facts; case to be made. The appeal may be taken on questions of law or on the facts or on both. If it is taken from a decree rendered on the trial by the surrogate of an issue of fact, it must be heard on a case to be made and settled by the surrogate as prescribed in this code. [Code, § 2576, without change, except the insertion of the words "in this code," at the end of the section, in the place of "by law, for the making and settling of a case upon an appeal in an action."] § 741. 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 on the appeal, not exceeding two hundred and fifty dollars [Code, § 2577, without change.] § 742. Security where decree is for money or delivery of property. 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 |