In Re the Probate of the Will of Wright , 224 N.Y. 293 ( 1918 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Service of notice as required by statute upon the persons interested in the descent of the real property and the distribution of the personal property of the decedent was essential to give the court jurisdiction to probate the alleged will. Was notice given as required by the statute? We think not. The parts of sections 2528 and 2529 of the Code of Civil Procedure which provide the notice that shall be given to one not a resident of the state are as follows:

"When an order, directing the service of a citation personally without the state, or by publication, is made, if the order authorizes service by publication, it must direct that the citation be served upon the persons named or described in the order, by publication of the citation in two newspapers, therein designated, unless from the petition or affidavit filed it appears that the estate or fund amounts to less than five thousand dollars, in which case only one newspaper shall be designated, for such specified time as the surrogate deems reasonable, not less than once in each of four successiveweeks, and by mailing a copy of such citation as provided in section 2529 of this chapter. * * *." (Code of Civil Procedure, section 2528.)

"* * * Service of citation by publication must be made by publication of the citation as prescribed in such order, and by the deposit, on or before the day of the first publication, in a specified post office, of a copy of the citation, contained in a securely closed post paid wrapper, directed to the person to be served, at a place specified in the order, * * *." (Code of Civil Procedure, section 2529.)

The citation in this case and the order on which it was issued were each dated twenty-eight days prior to the return day named in the citation, but the publication thereof was not commenced until the twenty-fourth day before the return day as therein provided. The citation was not mailed as required by section 2529 of the Code of Civil Procedure until twenty-five days before such return day.

Although section 2528 (formerly section 2524) of the Code of Civil Proceedure has been amended from time to time (Laws of 1918, chapter 309; Laws of 1914, chapter 443; Laws of 1899, chapter 606; Laws of 1881, chapter 664) the particular phrase thereof providing the minimum time for the publication of a citation has not been changed since the enactment of chapter 18 of the Code of Civil Procedure in 1880 except that by the amendment of 1914 the provision directing a publication of not less than once in each of six successive weeks was changed to four successive weeks.

Prior to 1880 the Revised Statutes provided for a service by publication "in the state paper for six weeks previous to the day appointed for taking the proof." (Revised Statutes, part 2, chapter 6, art. 3, sec. 53.)

Section 440 of the Code of Civil Procedure, relating to an order for service of a summons by publication, provides: "It must direct that service of the summons, upon the defendant named or described in the order, be made by publication thereof in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six successive weeks * * *." Section 135 of the Code of Procedure (subsequently section 440 of the Code of Remedial Justice and of the Code of Civil Procedure) provided for publication not less than once a week for six weeks.

A week is properly the time between midnight on Saturday and the same hour on the next succeeding Saturday, but the term is also applied to any period of seven successive days. (Halsbury's Laws of England, vol. 27, page 439.)

Whether the legislature intended by the use of the word "weeks" in said section 2528 specific periods of time between midnight on Saturday and the same hour on the next Saturday or simply any periods of seven successive days without reference to the time when they commence, it must be held that a publication "In each of four successive weeks" requires a period of twenty-eight days between the day of the first publication of the notice and the return day thereof, or the period for which notice is given, although apparently for four weeks, will be uncertain and in some cases not only materially less than four weeks, but it may in some cases be materially less than in others, as the exact time will depend upon the particular days upon which the publication is made. More serious proportionate reduction of the apparent time for which notice is to be given would be possible if the minimum time of publication should be reduced to two successive weeks.

This court in 1882 and subsequent to the decisions in Sheldon v. Wright (5 N.Y. 497), Olcott v. Robinson (21 N.Y. 150) and Wood v. Morehouse (45 N.Y. 368) decided in MarketNational Bank of N.Y. v. Pacific National Bank of Boston (89 N.Y. 397) that service of a summons by publication is not complete until the expiration of at least six full weeks from the time of the first publication. In the opinion the court say:

"Section 441 declares that the time shall be complete upon the day of the last publication, and section 787 that the period of publication must be computed so as to include the day which completes the full period of publication. It will be perceived that the publication must be made for a specified period of time, and when the statute provides for six weeks it is obvious that this period will not elapse prior to its expiration. It does not provide for a publication six times within six weeks, but for a time not less than once a week for six successive weeks. The publication evidently means rather more than printing the notice. Its object is to give notice by means of the newspapers, and it cannot be claimed that such notice is given for six weeks before that time expires. Looking at the various provisions referred to, it is a reasonable construction that the law intended a full six weeks' publication and not six times in six different weeks. If it were otherwise the time would vary and lead to confusion, and the defendant might not at all times know when it would expire as the summons need not be published on the same day in each week. (Steinle v. Bell, 12 Abb. Pr. [N.S.] 171.) In cases where service of process is made by publication it is of no little importance that the time of its expiration should be fixed and certain, and we think that such was the intention of the provisions cited in reference to such service." (p. 400.)

Much that was said by the court in that case applies with equal force in this case. No reason has been suggested except the slight difference in the wording of the statutes for a different rule in computing the time for the service of a citation than is required in computing the time for the service of a summons. Uniformity of rule is desirable and the statutes should have a construction to sustain such uniformity unless a different rule was intended by the legislature. The slight changes in the language of the acts from time to time and the difference existing between them, do not seem to have arisen from a purpose to change or vary the necessity for seven days time elapsing for each week mentioned in the several statutes.

Section 787 of the Code of Civil Procedure provides: "The period of publication of a legal notice, in an action or special proceeding, brought in a court, either of record or not of record, or before a judge of such a court, must be computed, so as to exclude the first day of publication, and include the day, on which the act or event, of which notice is given, is to happen, or which completes the full period of publication."

If the four successive weeks commence on the day of the first publication of the notice they would not expire until twenty-eight days after the day of such first publication and it may be assumed that the legislature in enacting said section 2528 did so with reference to the provisions of said section 787 and that it intended that persons served by publication should have at least four full weeks' notice of the proceeding to enable the court to obtain jurisdiction to act pursuant thereto.

We approve the language of the court in the Market NationalBank Case (89 N.Y. 397) and think it generally applicable to the case now before us. A construction of section 2528 that requires twenty-eight days from the day of the first publication is reasonable and conforms to the intention of the legislature as interpreted by the decisions existing at least at the time when the statutes were last amended. It is, so far as we know or have been able to ascertain, in accord with the uniform practice of the Surrogates' Courts of the state and as held and enforced by such courts for many years. (Estate of Koch, 19 Civ. Pro. Rep. 165; Jessup-Redfield's Law and Practice in the Surrogates' Courts, 121; Heaton on Procedure and Law of Surrogates' Courts, 140.)

Such a construction will make the minimum time for the publication of a citation uniform in all cases and prevent uncertainty and dispute as to the beginning and ending of the successive weeks and in the computation of the time provided by the statute.

The order of the Appellate Division should be affirmed, with costs.

HISCOCK, Ch. J., COLLIN, CUDDEBACK, HOGAN, McLAUGHLIN and CRANE, JJ., concur.

Order affirmed.