In re Porter's Will — 22 N.Y.S. 1063

Majority

p. 1063

(1 Misc. Rep. 489.)

In re PORTER’S WILL.

(Surrogate’s Court, Westchester County.

January, 1893.)

Headnote

Probate op Will—Service op Citation—Nonresidents.

Code Civil Proc. § 2520, provides that, “except where special provision is otherwise made by law, service of a citation within the state” must be made on a person at least 8 or 15 days, according to the place of service, before return day, personally, or by leaving a copy at his residence. Sections 2522, 2524, direct service on a nonresident to be made by publication for six weeks, or by personal service without the state, at least 30 days before return day. Held, that personal service on a nonresident, made within the state 30 days before return day, was insufficient.

Petition for the probate of decedent’s will. It appeared that two persons interested in the proceedings were nonresidents of the state, and service of citation was ordered to be made either personally without the state or by publication. The service was made personally, however, within the state, 30 days before return day.

John F. Lambden, for petitioner.

The question as to the proper service of the citation is jurisdictional. Section 2520 of the Code provides that, “except where special provision is otherwise made by law, service of a citation within the state” must be made upon a person at least 8 or 15 days, according to the place of service, before the return day, personally, or by leaving a copy at his residence, etc. Sections 2522, 2524, direct the mode of service upon a nonresident of the state, which is by publication for six weeks, or, at ¡he option of the petitioner, by personal service, without the state, at least 30 days before the return day. This case, then, comes within the exception mentioned in section 2520, and renders a service of the citation in this matter, under that section, void. That section only prescribes the mode of service upon residents. The other sections, supra, prescribe the manner of service upon a nonresident of the state, and, as none other is provided, unless so served, the court fails to obtain jurisdiction of the person. The object of the statute is, undoubtedly, to afford the person served time to make his ar

p. 1064

rangements to attend on the return day. It is his right, and, residing out of the state, if personal service be made upon him within the state 8, 15, or 30 days before the return day, it is "a failure to comply with the statute, as well as the order directing the mode of service. Had the petitioner here filed admissions of due service by these nonresidents, or had they appeared in person, making no objection, or had a duly executed and acknowledged waiver of the issuing and service of the citation upon them been presented within the petition, and the fact stated therein, the difficulty would have been obviated. In the latter case there would have been no necessity for an order of service by publication. As there must be proof of due service of the citation upon all of the persons entitled thereto, or such service be obviated in one of the modes indicated above, before the examination of the subscribing witnesses can be proceeded with, this matter must stand over until all of the parties are properly before the court.