In re the probate of the Merritt's Will , 5 Dem. Sur. 544 ( 1887 )

The Surrogate.

The petition very properly stated the ages and places of residence of the parties. This is essential, in order that the court may fix the return day of the citation. • If the petition had not stated such facts, an affidavit on the subject would have been required (Code Civ. Pro., § 2518; Redf. Surr. Pr. [3d ed.], 149). If it appear that all of the persons to be cited reside in the county of the Surrogate or an adjoining county, a return day will be fixed so that the same may be served at least eight days prior thereto; if in any other county of the State, so that the service may be made at least fifteen days before the return day; and if out of the State, such a return day must be fixed as to enable personal service thereof at least thirty days before the return day, or a return day fixed at least six weeks in advance, in order that service may be made by publication, etc. Although perhaps not strictly necessary, an order for the issuing of the citation is usually entered, but an order should be entered where the service is to be made by publication. The only guide the Surrogate has, by which to fix the return day, is the place of residence stated in the petition. Hence, if the residence is stated to be in another State, the only proper course would seem to be to make the order for personal service thirty days before the return day, or by publication.

It would appear to be irregular, in fixing a return day, to be influenced by a promise to bring the party within the county in order that a service of eight days might be effected. Section 2520 of the Code provides how service, within the State, shall be made. “ A citation shall be so served, if within the county of the Surrogate, or an adjoining county, eight days,” etc. This, I take it, means where the petition shows the residence to be in the county of the Surrogate or an adjoining county. The non-resident is entitled to the length of time which the statute awards him, although he be served while passing through the county. A minor can waive no rights, and it would seem improper, if not illegal to bring it into the county to subject it to process. ’ Of course, adults, wherever their residence may be, may waive legal service, or may volunteer an appearance, so as to confer jurisdiction. Minors cannot.

Application denied.