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Of the general powers and duties of the SURROGATE.
The surrogate in the state of New-York is the officer to whom is deputed the jurisdiction of wills and testaments, and the control and disposition of the estates of persons dying intestate. This officer is possessed of like powers with the ordinary in England—the judge of probates in New-England, and the orphan courts in other states.
The surrogate appoints and removes guardians, and directs and controls their conduct and accounts, and has power of assigning dow
One surrogate is appointed for each county, by the senate, upon the recommendation of the governor, and must give bond and be sworn as directed by statute.
A brief history of the origin of this officer, and the powers from time to time vested in him, may be found in a former treatise on this subject. All common law jurisdiction is now taken from him, and he must exercise his powers "in the cases, and in the manner prescribed by the statutes of this state”, and cannot, “under pretext of incidental power or constructive authority, exercise any jurisdiction whatever not expressly given by some statute of this state"--ch. 2. tit. 1. s. 1. He must hold a court within the limits of his county, which must be at all times open, and particularly on Monday of each week : it is his duty to attend at his office to exercise the powers and duties conferred on him.-ib. s. 2.
The present seals of the several surrogates will continue to remain the seals of their courts, with power to destroy when injured, and to procure similar ones in the manner directed by law.
The surrogate has power:
1st. To take the proof of wills of real and personal estates; to take the proof of any will relating to real estate, situted within the county of such surrogate, when the testator in such will shall have died out of this state, not being an inhabitant thereof, and not leaving any assets therein.
2. To grant letters testamentary and of administration.
3. To direct and control the conduct, and settle the accounts of executors and administrators.
4. To enforce the payment of debts and legacies, and the distribution of estates of intestates.
5. To order the sale and disposition of the real estates of deceased persons.
6. To administer justice in all matters relating to the affairs of deceased persons, according to the provisions of the statutes of this state.
7. To appoint guardians to minors, to remove them, to direct and control their conduct, and to settle their accounts, as prescribed by law.
8. To cause the admeasurement of dower to widows.--ch. 2. tit. 1. sec. 1, 6, 7.
The surrogate must file all papers belonging to his court, and may enforce the service of all process issued out of his court, and award costs in his discretion. Jurisdiction once acquired by a surrogate in any matter becomes exclusive, over the same matter and all its incidents, of all other surro. gates. The exceptions to this rule will be stated in their
appropriate places in this treatise.
No surrogate can be counsel, solicitor or attorney, for or against any executor, administrator, guardian or minor, in any civil action, over whom or whose accounts he could have any jurisdiction by law.ch. 2. tit. 1. sec. 8, 9, 10, 12, 13.
Of the duties of the Surrogate in particular cases, and his
proceedings in each case.
1st. In proving wills:
It is proper to mention, that what the author predicted has now been accomplished, and all wills are placed upon the same basis.
Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner:
1. It shall be subscribed by the testator at the end of the
2. Such subscription shall be made by the testator, in the presence of each of the attesting witnesses, or shall be acknowledged by him, to have been so made, to each of the attesting witnesses.
3. The testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument so subscribed, to be his last will and testament.
4. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness, at the end of the will, at the request of the testator.
5. The witnesses to any will, shall write opposite to their names their respective places of residence; and every person who shall sign the testator's name to any will, by his direction, shall write his own name as a witness to the will. A neglect to comply with either of these provisions, subjects the author of the omission to a penalty of fifty dollars, to any devisee or legatee who will sue for it. But the omission does not invalidate the will, nor render the witness incompetert. ch. 6. tit. 1. sec. 40, 41.
The term "will”, as used in this treatise, includes all codicils as well as wills.
If a testator devises in express terms all his real estate, or in any other terms denoting his intention to devise all his real estate, his will shall be construed to pass all the real estate of which he may be seized, and entitled to devise, at the time of his death, This is an alteration of the common law.-ib. tit. 1. sec. 5.
A devise to an alien is void. The interest devised descends to the heirs (if any), or in default of legal heirs, to residuary devisees; if no residuary devisees, it escheats.—ib. s. 4.
Wills of REAL ESTATE may be proved before the surrogate in the manner which will be noticed in the second part of this work. It is sufficient to state in this place, that such wills must be proved upon notice to be given by the person applying for probate, and that if any of the heirs are minors, and have no guardians, the surrogate shall appoint guardians to take care of their interests in the proceedings to probate.Witnesses may be subpænaed, and persons required to produce wills in their possession, who may be punished for disobedience. Any person committed for not producing a will, may, by an order to be entered for that purpose by the surrogate, be discharged, on producing the same to the surrogate.
Upon proof being made of the due service of the notice of such application, the surrogate shall cause the witnesses to be examined before him. All such proofs and examinations shall be reduced to writing. All the witnesses to such will who are living in this state, and of sound mind, shall be produced and examined; and the death, absence, or insanity of any of them, shall be satisfactorily shown to the surrogate taking such proof.
When any one or more of the subscribing witnesses to such will shall be examined, and the other witnesses are dead, or reside out of the state, or are insane, then such proof shall be taken of the handwriting of the testator, and of the witness or witnesses so dead, absent, or insane, and of such other circumstances, as would be sufficient to prove such will, on a trial at law.
If it shall appear upon the proof taken, that such will was duly executed ; that the testator, at the time of executing the same, was in all respects competent to devise real estate, and not under restraint, the said will and the proofs and examinations so taken, shall be recorded in a book to be provided by the surrogate, and the record thereof shall be signed and certified by him.
Every will so proved, shall have a certificate of such proof indorsed thereon, signed by the surrogate and attested by his seal of office, and may be read in evidence without further proof thereof. The record of such will, made as aforesaid, and the exemplification of such record, by the surrogate in whose custody the same may be, shall be received in evidence, and shall be as effectual in all cases, as the original will would be, if produced and proved, and may, in like manner, be repealed by contrary proof.
If it shall appear to the satisfaction of the surrogate, that all the subscribing witnesses to any such will are dead, insane or reside out of the state, the surrogate shall take and receive such proof of the handwriting of the testator, and of either or all the subscribing witnesses to the will, and of such other facts and circumstances, as would be proper to prove such will, on a trial at law.
The proofs and examinations taken as aforesaid, shall be signed, certified and recorded by the surrogate as herein before provided, and the will shall be deposited with him.
The witnesses shall have the like fees for their attendance, on proving a will, as are allowed for similar services in personal actions, to be paid by the person applying to have such will proved.
In case probate of a will as last mentioned where the witnesses are dead, insane, or reside out of the state, the records of the proof and examinations taken by the surrogate, and the exemplification of such records, shall be received as evidence upon any trial concerning the same will, after it shall have been proved that the lands in question have been uninterruptedly held under such will, for twenty years before the