
    In the Matter of Porter, Deceased.
    (Surrogate’s Court—Westchester County,
    January, 1893.)
    Personal service of a citation to attend the probate of a will made within this state, upon a nonresident, is void.
    Service upon a nonresident of this state of a citation to attend probate of a will must be by publication for six weeks or at the option of the petitioner by personal service without the state at least thirty days before the return day.
    If upon the return day of the citation, the petitioner files admission of due service by a nonresident or he appears in person and makes no objection to the probate, or a waiver of the issuing and service of the citation duly executed and acknowledged by him is presented, due service of the citation upon him is obviated.
    The petition for probate in this matter showed, among other things, that Sarah S. Wrensall and Jane B. Platz, necessary-parties to the proceeding, resided, the one in the state of Pennsylvania and the other in the state of Connecticut. An order was thereupon entered by the surrogate directing service to be made by publication or personal service without the state. The citation was not served in either of those modes, but was personally served, in this state, at least thirty days before the return day of the citation. On proof of such service, the court is asked to proceed with the examination of the subscribing witnesses to the will.
    
      John F. Lambden, for petitioner.
   Coffin, S.

The question as to the proper service of the citation is jurisdictional. Section 2520 of the Code provides that “except where special provision is otherwise made by law, service of a citation within the state ” must he made upon a person at least eight or fifteen days, according to the place of service, before the return day, personally, or by leaving a copy at his residence, etc. Sections 2522 and 2524 direct the mode of service upon a nonresident of the state, which is by publication for six weeks, or, at the option of the petitioner, by personal service, without the state, at least thirty days before the return day. This ease, then, comes within the exception mentioned in section 2520, and renders a service of the citation in this matter, under that section, void. That section only prescribes the mode of service upon residents. The other sections, supra, prescribe the manner of service upon a nonresident of the state, and as none other is provided, unless so served, the court fails to obtain jurisdiction of the person. The object of the statute is, undoubtedly, to afford the person served time to make his arrangements to attend on the return day. It is his right, and, residing out of the state, if personal service be made upon him within the state, eight, fifteen or thirty days before the return day, it is a failure to comply with the statute, as well as the order directing the mode of service. Had the petitioner here filed admissions of due service by these nonresidents, or had they appeared in person, making no objection, or had a duly executed and acknowledged waiver of the issuing and service of the citation upon them been presented with the petition and the fact stated therein, the difficulty would have been obviated. In the latter case there would have been no necessity for an order of service by publication.

As there must be proof of due service of the citation upon all of the persons entitled thereto, or such service be obviated in one of the modes indicated above, before the examination of the subscribing witnesses can be proceeded with, this matter must stand over until all of the parties are properly before the court.  