In re the Estate of Mortimer

New York Surrogate's Court

In re the Estate of Mortimer

84 Misc. 2d 1086, 380 N.Y.S.2d 216, 1976 N.Y. Misc. LEXIS 1951

DecidedJanuary 2, 1976

StatusPublished

This text of 84 Misc. 2d 1086 (In re the Estate of Mortimer) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Mortimer, 84 Misc. 2d 1086, 380 N.Y.S.2d 216, 1976 N.Y. Misc. LEXIS 1951 (N.Y. Super. Ct. 1976).

Pincite

Opinion

Irving A. Green, J.

In this proceeding for the intermediate judicial settlement of the trustees’ account, the guardian ad litem raises objection to the manner of service of citation on [1087]*1087his infant ward. This substantive jurisdictional objection, having been presented to the court in the guardian ad litem’s report, cannot be overlooked despite the absence of similar objections by any adult party to this proceeding. The infant, a presumptive remainderman, is a necessary party. (SCPA 2210, subd 9.)

It is not disputed that the infant’s mother was served personally (he being under 14 years of age) on Sunday, September 7, 1975. Such service is prohibited and absolutely void for any and every purpose whatsoever. (General Business Law, §11.)

Jurisdiction of an infant may be obtained only by proper service of a citation upon him. (Matter of Maroney, 20 AD2d 678.) Improper service may not be cured by the appearance and consent of the guardian ad litem. (Donovan v Flynn, 219 App Div 471.)

Accordingly, the matter is restored to the calendar and the petitioners are directed to obtain a supplemental citation directed to the infant and to make proper service thereof.

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