CROMWELL V. KIRK.

was not one of inheritance. It does not appear that she was, in any way, of the blood of Mr. Perry, and her interest was, at least, determinable and determined by a limitation, which not only deprived her husband of curtesy, but also deprived him of any share as distributee, because her interest was for life only. Had the clause read "to her and her child or children, or her assigns," the estate created in the wife, as to the real property, would have been a fee simple absolute, as the word "assigns" clearly imports such fee, and she would also have had the absolute ownership of the personal property; but conceiving the plain intention of the testator to have been as indicated. and knowing of no rule of law applicable to the defeat of such intention, I must hold that the estate of George W. Richardson is liable to account to these wards, for property derived under the will of Mr. Perry.

The case of Clarke v. Leupp (88 N. Y., 228), and the cases therein considered, are not in point. The wills there criticised and construed contained what are termed precatory words following the bequest. Here, there is no direction, suggestion, advice, or request made, as to how Mrs. Richardson should dispose of the property given to her. It is simply given to her for life, and then to her children, and, in case she left no child, then to her husband.

The accounting will proceed upon the basis above indicated.

PRYER V. CLAPP.

WESTCHESTER COUNTY.-HON. OWEN T. COFFIN, SURROGATE.-July, 1883.

PRYER V. CLAPP.

In the matter of the application for revocation of probate of the will of DESIRE A. CLAPP, deceased.

The jurisdiction of a Surrogate, relating to the revocation, upon petition, of the probate of a will, is wholly statutory, and the statute must be strictly followed.

The will of the testatrix was admitted to probate November 7th, 1881, none

of the persons cited appearing. On November 6th, 1882, petitions for the revocation of such probate were filed by certain next of kin, under Code Civ. Pro., § 2647. A citation was accordingly issued February 21st, 1883, and was first served upon a party February 23d, 1883. A motion was made to dismiss the proceedings upon the ground, among others, that the citation was not served within the time limited by Code Civ. Pro., § 2517.

Held, that the Surrogate lost jurisdiction by the failure to serve the citation on one of the adverse parties within sixty days after the presentation of the petition, and that the motion must be granted.

A variance between a citation and a copy thereof served is curable by amendment, where the respondent has appeared.

of

It seems, that, under Code Civ. Pro., § 2647, relating to revocation of probate of a will upon petition, and providing that, “upon the presentation a petition, the surrogate must issue a citation accordingly," it is the duty of that officer, at once, upon the presentation of the petition, to issue the process appropriate to the case. Upon a petition for revocation of probate of a will, as a matter of right, the Surrogate is governed by the provisions of Code Civ. Pro., §§ 2647-2653; and he cannot grant relief under id, § 2481, subd. 6, authorizing him to open, vacate, modify or set aside a decree

or order of his court," etc.

Where a Surrogate has lost jurisdiction of a cause by failure to serve a citation within the time prescribed by statute, the error is not cured by a voluntary general appearance, which, by Code Civ. Pro., § 424, is made equivalent to personal service of process, the objection being not that there has been no service, but that service has not been made within the requisite time.

PRYER V. CLAPP.

THE will of the decedent was, after service of a citation upon all parties interested, duly proved and admitted to probate, on November 7th, 1881. Decedent was the wife of George H. Clapp, who was named as executor in her will, and survived her. She died seized of a large estate, both real and personal, and left no descendants. Her heirs-at-law and next of kin were two aunts, an uncle and several first cousins, all of whom were cited to attend the proving of the will, and none of whom appeared thereupon.

On Nov. 6th, 1882, the uncle, James Pryer, and one of the cousins, John S. Rapelye, filed written petitions praying for the revocation of the probate of said will, under § 2647 of the Code. A citation was issued on Feb. 21st, 1883, pursuant to the prayers of the petitions, directed to the proper persons, and was served on one of such persons on Feb. 23d, 1883. This was the date of the first service thereof upon any of the parties. The citation issued contained the names of all of the persons to be cited, but the copies, made under the direc tion of the petitioners, contained each only the name of the person on whom it was to be served. Counsel for the executor moved to dismiss the proceedings, (1) because of the irregularity in the copies of the citation; (2) because the citation was not served within the time limited by Code Civ. Pro., § 2517; (3) because petitioners had no interest in the matter.

J. W. HOWE and JOSEPH H. CHOATE, for the executor.

ETHEN ALLEN, JOSEPH S. WOOD and KNOX & WOODWARD, for the petitioners.

THE SURROGATE.-The learned counsel for the petition

PRYER V. CLAPP.

ers is mistaken as to the practice of this court in regard to the contents of the copies of the citation to be served. The uniform practice is to make them correspond with the original, including all the names embraced in the original citation, otherwise they would not be copies. But that is an irregularity which may be cured in various ways, and is hardly worthy of serious consideration in this case, where the parties objecting have appeared.

By 2647 of the Code, "a person interested in the estate of the decedent" may, within the time specified in the next section, which is within a year after the recording of the decree admitting the will to probate, present to the Surrogate's court, in which a will of personal property was proved, a duly verified written pétition, containing allegations against the validity of the will, etc., and praying that the persons in interest may be cited to show cause why it should not be revoked. "Upon the presentation of such a petition, the Surrogate must issue a citation accordingly." The petitions in this matter were filed Nov. 6th, 1882, but the citation was not issued until Feb. 21st, 1883, nor served on any person to whom it was directed until two days afterwards, which was about one hundred days after the filing of the petitions. The counsel.for the executor insist that this delay is fatal to the proceeding. I think this view is correct. By 2517, the presentation of a petition is deemed the commencement of a special proceeding, within the meaning of any provision of the act which limits the time for the commencement thereof. "But, in order to entitle the petitioner to the benefit of this section, a citation, issued upon the presentation of the petition, must, within sixty days thereafter, be served" upon

PRYER V. CLAPP.

one or more of the adverse parties. In both sections, the word "upon" is used in the sense of "at the time of;" thus, in § 2647, it would read, "at the time of the presentation of the petition, the Surrogate must issue a citation accordingly," and in § 2517, "a citation, issued at the time of the presentation of the petition, must, within sixty days thereafter, be served," etc. The word "thereafter" cannot relate to the word "citation" alone, because it cannot be predicated upon what, of itself, indicates no point of time, but it does clearly relate to the time of issuing the citation, which must be "issued upon the presentation of the petition." The duty of the Surrogate is to, at once, on the presentation of an application, issue the process appropriate to the case. Undoubtedly, he may defer to the wishes, in that respect, of counsel having charge of the proceeding, which was probably done in this instance; but if, through his own neglect, or through inadvertence of counsel, he lose jurisdiction, I cannot see how, in a case like the present, it can be regained. The jurisdiction of Surrogates, relating to revocation of probate, is wholly statutory. In exercising the power, we can, in no way, alter or disregard the provisions of the statute. We cannot say we will turn the hands back upon the dial, and thus bring the act done within the period limited.

It is insisted, however, by counsel' for the petitioners, that this court has power, under subd. 6 of § 2481, under the prayer in the petitions for general relief, to set aside the probate, and to try the question of the validity of the will. It ought to be sufficient to say that the petitions are not framed with any regard to invoking action under that section. No reason is alleged why the decree