Keeney and others, appellants, vs. Whitmarsh, respondent, 16 Barb. 141

By the Court, Gridley, J. I. The appellants insist that the decree of the surrogate is erroneous, on the ground, 1st. That that officer never acquired jurisdiction over the persons of the infants and married women, next of kin to the testatrix, by the service of a citation on them in legal form, and by the appointment of a guardian, or next friend, to take care of their interests on the hearing; 2d. On the ground that the will was not legally executed. We will examine these objections in their order.

First, as to the question of jurisdiction. (1.) The infants had a general guardian, who was served with a citation, and who appeared on the hearing for them. «The appellants contend that as the guardian was the brother of the infants, and by the will the females received less than the males, the general guardian was interested against the infants; and for .this reason the citation should have been served on the infants themselves; and a guardian ad litem should have been appointed for the infants on the hearing. The surrogate pursued the directions of the statute in relation to the minors.

It was his duty to inquire and ascertain “ the names and places of residence of the heirs, widow and next of kin of the testator; and whether any, and which, of the persons mentioned in the preceding section, are minors; and the names and places of residence of their general guardians, if they have any; and if there be no general guardian in this state, the surrogate shall, by an order to be entered, appoint a special guardian for such minor to take care of his interest in the premises.” (Laws of 1837, ch. 460, §§ 4 and 5. 2 R.

S. 248, §§ 48 and 49, 4th ed.) In ascertaining the facts, as directed by the statute, the surrogate learned that the infants had a general guardian in the state; ánd he neither had, nor could have, any knowledge of any supposed hostile interest to the infants, growing out of the provisions of the will, which he had not yet seen. He accordingly issued his citation for such guardian, and did not appoint a special guardian as he would have done if there had been no general guardian.

These acts, the omission of which is charged as erroneous, on the part of the surrogate, were all required to be done before the citation was issued, and before the surrogate could regularly know the objections to the course he was pursuing. We think the surrogate had no right, even if he had known all the facts as they appear on the return in this case, to supersede the statute, if he found it defective, or to disobey its injunctions, because it made no provision for a case of hostile interests, like that of the guardian and the infants.

If any real injury had been done to the interests of the infants, by the guardian’s neglect, he would be responsible to the infants. But the surrogate, who pursued the exact directions of the statute, and when he could not know of the objections that existed to that course, did not lose his jurisdiction by obeying the statute. He could not have removed the guardian without a proceeding having been instituted for that purpose, however improper that appointment may have been.

He must regard him as the legal guardian, and proceed as in any other case where a general guardian had been appointed before. (2.) The surrogate also directed the citation to the married women, and the servige was proved to have been made on them, without their husbands. In this also, he pursued the statutory direction. (Laws of 1837, ch. 240, § 7. 2 R. S. 248, § 50, 4th ed.) In this case, the provisions in the will in favor of the married women, constituted their separate estate, as the will was made since the act of 1848 and 1849, in relation to the property of married women. And by

section fourteen of the code, a married woman may sue alone, when the action concerns her separate property. If she may sue alone, in an action by the laws of the land, she may, by analogy of the law in this proceeding, be cited as next of kin, without her husband, to attend the proof of a will, in a case where the statute has made no provision for citing her husband. If she be cited, she can give the citation to her husband, if she desires to do so. The question arose previous to the enactment of the code, before the chancellor, in 1843, in the case of Bibby v.

Myer, (10 Paige, 220,) and he seems inclined to think that as the husband is not the next of kin, and the statute only requires the citation to be served on the next of kin, a service on the wife is a legal service. This decision, it will be seen, was made before the acts of 1848 and 1849 were passed, and the chancellor dismissed the application to set aside the decree, because the application was made by Myer alone, without his wife, saying that the application should have been made by her husband, in her name as well as his own.

Though we think it the most prudent course to serve a citation on the husbands of femes covert, as well as on themselves, yet we do not think it is required by the act, either expressly or by implication ; and especially, since the husband, by the recent statutes, has not even an equitable interest in the legacies given by the will; and as the law of the land recognizes the wife as competent to sue alone, in an action concerning her separate estate, we cannot hold that the decree is void for want of jurisdiction.

There is no force in the argument that the proceeding is an action under the code, and for that reason the proceedings to appoint a guardian for infants have superseded the provision for serving a citation on the general guardian, in the act of 1837. It is not a “ proceeding for the protection or enforcement of a right,” within the meaning of the code. It was not an adversary proceeding. It does not seek any relief against the parties, as in the case of an action to recover a sum of money, or specific real or personal estate.

If an action, then it must be commenced by summons and complaint, and the citation has become obsolete. This proceeding is moreover expressly saved from the operation of the code, as one of the special proceedings from which its application is excluded. [Oneida General Term, January 3, 1853. Gridley, Pratt, W. F. Allen and Hubbard, Justices.] II. The will was properly executed. The alleged error was in the testator’s making her mark (her name having been signed by one of the witnesses at her request) immediately after she had declared the instrument to be her last will.

The statute directs that the testator, at the time of making such subscription, or at the time of acknowledging the same, shall declare the instrument to be Ms last will and testament. TMs was at the same interview, and at the same time, within the meaning of the act. This point has been expressly decided in the third district, and we adopt the principle of the decision and reasoning of the court, as being a sound and reasonable exposition of the statute. (Roe v. Roe, 2 Barb. S. C. Rep. 200.) We affirm the decree of the surrogate, with costs.