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RULES OF PRACTICE

IN

SURROGATE'S COURT, CITY AND

COUNTY OF NEW YORK

(Adopted January 1, 1896) RULE 1. Special motion calendar.

2. When motion or proceeding may be entered on calendar; ad

journment of motion. 3. Service of mandates; when copy of petition, etc., must be served. 4. Contest of probate of will. 5. Certain persons must be made parties in probate proceeding: 6. When person not executor entitled to costs. 7. Accountings. 8. Referee's report. 9. Orders and decrees in litigated motions. 10. Special guardian of infant party. 11. Entry of decrees against infants. 12. When special guardian will be appointed. 13. Costs, when allowed to petitioner for inventory of executor or

administrator. 14. Petitions and answers to be in writing. 15. Deposit of securities, where made. 16. Justification of sureties to undertaking on appeal. 17. Justification of sureties to bond of executor, administrator,

guardian or other trustee.
18. What papers will be considered on determination of motion or

otherwise.
19. Proposed order or decree.
20. Records filed in court.
21. Inventory and account of guardians.
22. Costs; additional allowances to executors, etc.
23. Motions for reargument.
24. General regulations of practice in Surrogate's Court.
25. Transfer tax proceeding.

Rule. 1. Special motion calendar A special motion calendar will be called on each Tuesday and Friday at 10:30 o'clock, a. m., except during the month of August. No calendar will be called during that month.

Motion; service of papers; contest of probate — Rules 2-4

Rule 2. When motion or proceeding may be entered on calen

dar; adjournment of motion To entitle a motion or proceeding to be entered upon the motion calendar, proof of service of all orders, citations, summons and other papers on which the motion or application shall be made, must be furnished to the clerk of this court at or before one o'clock on the day preceding the motion day. No motion shall be adjourned without showing to the satisfaction of the surrogate legal grounds therefor; except upon the return day thereof, when it may be adjourned for a week on filing with the clerk the written consent of the parties. Rule 3. Service of mandate; when copy of petition, etc., must

be served No mandate issued out of this court shall be deemed duly served, unless copies of the petition or other paper or papers upon which it shall be issued, and upon which relief is sought, shall be served with it, except the following:

1. Citation to attend probate.
2. Citation to revoke probate.
3. Citation on application for administration.
4. Citation for intermediate account.
5. Citation to attend judicial settlement of account.
6. Citation to temporary administrator to account.

7. Citation to principal in a bond to give new sureties in place of sureties who apply to be released.

8. Order to temporary administrator to make deposit. 9. Order to executor to appear and qualify. 10. Order requiring the executor or administrator to file inventory.

11. Why an account should not be made on surrogate's motion.

Rule 4. Contest of probate of will A party seeking to contest the probate of a last will and testament must file a written appearance with the clerk

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of this court, together with a written and verified answer, containing a concise statement of the grounds of his objection to such probate, and any facts he may allege tending to establish a want of jurisdiction of the court to hear such probate. In case such jurisdiction shall be denied or the right of any objecting party to appear and contest shall be questioned, the court will first hear and pass upon the question of jurisdiction, or the status of the contestant, unless, for the convenience of the parties or the court, it shall be ordered otherwise. When a contestant files with the surrogate the notice provided for by section 2618 of the Code of Civil Procedure, requiring the examination of all the subscribing witnesses to a will, or any other material witness, he must present with such notice an affidavit showing the materiality of the testimony of the witnesses or witness sought to be examined, and an order requiring the production by the proponent, of such witnesses or witness. A copy of such order, if the same shall be signed, must be immediately served upon the proponent or his attorney.

In all cases of contests in probate proceedings, the proponents shall, within five days after objections to the probate are filed, present a verified petition for and procure and enter an order directing notice of the time and place of hearing of such objections to be given, and prescribing the manner of giving such notice, to all persons in being who would take any interest in any property under the provisions of the will, and to the executor or executors, trustee or trustees named therein, if any, who have not appeared in the proceeding, as required by section 2017 of the Code, and such petition shall contain the names and addresses of such parties, and state whether any, and which of them, are infants or of unsound mind. In case the proponents shall not present such petition and enter such order within the time aforesaid, such petition may

Parties; costs— Rules 5, 6

be presented and order entered by or on behalf of any party or parties interested in the estate.

Proofs of service of such notices must be filed with the probate clerk at least four days before the date named therein for such hearing.

In probate proceedings, when all parties in interest have waived the service of citation, notice of at least two days must be given to the probate clerk before the testimony of the subscribing witnesses will be taken.

The will should be filed with petition for probate, unless upon good cause shown by affidavit the surrogate dispenses therewith, in which case it must be filed at least two days before the return day of the citation.

In all cases a copy of the will must be filed with the petition.

Rule. 5. Certain persons must be made parties in probate

proceeding

Wherever a party shall put in issue on probate the validity, construction or the effect of any disposition of personal property under section 2624 of the Code, if it shall appear that all persons interested in such construction are not before the court, the determination of such question shall be suspended until such persons shall be made parties; and the executor named in the will shall not be held to represent the legatees therein for the purpose of such construction.

Rule 6. When person not executor entitled to costs.

Wherever any person shall appear in support of the will propounded under section 2617 of the Code, such person shall not thereby become entitled to recover any costs on the probate of said will unless it shall appear to the satisfaction of the court that the interest of such person

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