9 N.Y.S. 459 | N.Y. Sur. Ct. | 1888
The learned counsel opposing this application first took the ground that, as the petitioner had opposed the original probate on substantially the sam'e grounds as those alleged in his petition in this matter, the prayer should be denied, and the proceeding dismissed, citing as an authority
The only remaining question for consideration is whether this court has lost jurisdiction by reason of the citation not having been served on all the p’arties within 60 days after it was issued. The date when it was issued is June 19, 1888, and it was returnable on the 4th day of September following. It was served on Elizabeth Odell, Margaret King, and the missionary society on the 20th, 22d, and 29th days of August, respectively, which was more than 60' days after it was issued, and was not served on another legatee, named in it, at all. The Code provides by sections 2647, 2648, for a ease of this kind, substantially in accordance with the provision of 2 Rev. St. p. 61, §§ 30, 31, with some slight changes. The petition must be presented within one year after the recording of the decree admitting the will to probate. That was done in this case; and section 2517 declares that the presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of that act which limits the time for the commencement thereof; but it further declares that, in order to entitle the petitioner to the benefit of that section, a citation issued upon the presentation of the petition must, within 60 days thereafter, be served upon the adverse party, or upon one of two or more adverse parties who are jointly liable or otherwise united in interest, or, within the same time, the first publication thereof must be made, etc. But it has been suggested that section 2517 is not applicable here, because section 2516 provides that, “except in a case where it is otherwise specially prescribed by law, a special proceeding in a surrogate’s court must be commenced by the service of a citation, issued upon the presentation of a petition;” and that, as section 2648 limits the time for the presentation of the petition only, and not for the “commencement” of the proceeding by serving a citation, this case does not come within the provisions of section 2517. As there is no provision in chapter 18 of the Code which limits the time for the commencement of a special proceeding, unless this be one, and one other of the same character hereafter mentioned, then the section has no application whatever. It cannot be found in the report of the commissioners made in 1875, but first appears in that made by them in 1878. In neither of these reports was there, nor is there in that chapter of the Code as enacted, any section limiting the time for the commencement of a special proceeding, other than those already alluded to.
In the construction of statutes, effect must be given to the intent of the legislature, whenever it can be discerned, though such construction seems contrary to the letter of the statute. Smith v. People, 47 N. Y. 330, and cases cited; People v. Lacombe, 99 N. Y. 43, 1 N. E. Rep. 599. In the last case, Miller, J., says: “A reasonable construction should be adopted in all
The section in question cannot, in this respect, refer to sections 398-414, inclusive, of the Code, under the head of “general provisions” relating to the statute of limitations; because, although the last-named section makes the provision of the chapter the only rules of limitations applicable to a civil action or special proceeding, except where a different limitation is specially prescribed by law, yet here is a limitation different from any other contained in the Code. In all other respects, the limitations, as prescribed in chapter 4, are made applicable to all special proceedings, as well in surrogates’ courts as elsewhere; and hence there was no apparent necessity for the enactment of section 2517, unless it were to provide for a case of this character. The exception in section 2516 clearly has reference to special proceedings relating to the time óf commencing proceedings in surrogates’ eourls only.
In the case of Pryer v. Clapp, 1 Dem. Sur. 387, this court held, on a similar state of facts, that it had lost jurisdiction because the citation had not been served within the 60 days. This was followed by the case of Fountain v. Carter, 2 Dem. Sur. 313, in which Surrogate Rollins gives the same interpretation of these sections. He also conclusively shows that, where separate legacies are given, the several legatees are not united in interest within the meaning of the section, and that the citation must be served on each within the time specified.-' Undoubtedly, in this case, the presentation of the petition is the commencement of the proceeding; but the service of the citation must be made within the 60 days, or the proceeding falls. The same considerations are applicable to the time and mode of instituting a proceeding to sell real estate for the payment of debts. Section 2750 provides that, within three years after the granting of letters, a petition may be presented, etc., whereupon the surrogate shall issue a citation. Here the time to initiate the proceeding is also limited by the act, and the citation must be served within the same time. It seems, as has been stated, that these are the only instances in the Code where the time is limited within which a proceeding must be begun, and the provisions of section 2517 must be applicable equally to both, or else it must be meaningless. But the courts are bound to give such a construction to a statute as will not suffer it to be defeated. People v. Insurance Co., 15 Johns. 358; Jackson v. Lewis, 17 Johns. 475; Dwar. St. 690. In Potter’s Dwar. St. 128, will be found this rule as laid down by Vattel: “The interpretation which renders a treaty (or statute) null and void cannot be admitted. It is an absurdity to suppose that, after it is reduced to terms, it means nothing. It ought to be interpreted in such a manner as that it may have effect, and not be found vain and illusive. ” The case of In re Gouraud, 95 N. Y. 256, has no application here, as the case arose before chapter 18 of the Code was enacted, and was governed by the prior law. Be