In re Carhart — 2 Dem. Sur. 627

Majority

p. 627

Westchester County.—Surrogate.

Hon. OWEN T. COFFIN,

May, 1884.

Matter of Carhart. In the matter of the probate of the will of Thomas F. Carhart, deceased.

Headnote

By a proper construction of Code Civ. Pro., § 2530, which directs that a citation from a Surrogate’s court must be served, if in the same or an adjoining county, " at least eight days before the return day thereof,” and of id.,^§ 788, which provides that “the time within which an act.....is required by law to be done must be computed by excluding the first and including the last day,”—the return day specified in a citation may be counted, in estimating the eight days required for such a service. Hence service, on the 12th, of a citation returnable on the 20th of a month,—held, sufficient.

Boerum v. Betts, 1 Dem., 471 , on this point to the contrary—disapproved.

Statutory provisions requiring service of notices a specified number of days “before the court,” or “before the commencement of the term’’—compared.

p. 628

The citation in this matter was served on the 12th and was returnable on the 20th day of the same month, on which last day the will was proven and admitted to probate. The question arose whether the Surrogate obtained jurisdiction of the persons so cited ; it being suggested that the citation was not served at least eight days before the return day thereof, and that, therefore, a new proceeding should be instituted, with a view to-a proper probate.

C. & A. Vast Santvoord, for proponent.

I am entirely satisfied that the service was sufficient, and that this court obtained jurisdiction of the persons cited. The general common-law rule, as to the computation of time in the service of papers, is that one day is included and one day excluded. This rule is stated by Marot, J., in Small v. Edrick ( 5 Wend., 137 ). Such a rule would render the service, in this matter, perfectly proper. Doubtless, the legislature, and also the Supreme court then, had power to vary the general rule. In the case cited, the legislature had required the notice of trial to be served at least fourteen days before the first day of the court, but made no provision for the computation of time; and the service on the 9th for the 23rd of Hovember would have been good, under the general rule, and would have been so held in that case, had not a rule of the court expressly excluded the first day. How, however, the various Codes provide that the first day shall be excluded and the last included. Here, § 2520 of the present Code, required the citation to be served at least eight days before the return day. Sec

p. 629

tion 788 of the same Code provides that the time within which an act is required by law to be done, must be computed by excluding the first and including the last day. This section is made applicable to Surrogates’ courts by subd. 6 of § 3347. Therefore, whether the citation in this matter was served in time depends upon the construction to be given to § 788. Section 368 of the Code of 1848 (§ 407 of that of 1858) is substantially the same as above § 788. It was also provided by § 211 (256 of 1858) that either party might give notice of trial at least ten days before the court (amended to 14 days in 1859). These sections were construed by the Supreme court, in the cases of Easton v. Chamberlin ( 3 How. Pr., 412 ); Dayton v. McIntyre (5 id., 117), and others ; all of them holding that the first day of the court must be included in computing the time. Section 977 of the present Code of Civil Procedure provides that notice of trial shall be served “ at least fourteen days before the commencement of the term.” There is no substantial difference, therefore, between the former and the present Code, in this respect; and the universal practice is, as I am informed by intelligent lawyers in active practice, to include the first day of court, or term, in the computation. The above decisions apply with equal force to the present Code. It will be difficult to discover any reason why this rule shall not apply, as well to the service of a citation which must be “at least eight days before the return day thereof,” as to a notice of trial which must be served “at least fourteen days before the court,” or “before the commencement of the term.” I must, therefore, dissent from the dActum on this sub

p. 630

ject in the case of Bœrum v. Betts (1 Dem. R., 471), and hold that the service in this case was sufficient.

I have deemed it proper ■ to examine this question with some care, as titles of devisees may be involved.