In re the Estate of Mortimer — 84 Misc. 2d 1086

Majority

p. 1086

In the Matter of the Estate of Katharine H. Mortimer, Deceased.

Surrogate’s Court, Orange County,

January 2, 1976

Appleton, Rice & Perrin for petitioners. Thomas R. Hadaway, guardian ad litem for Walker Blaine, an infant.

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

p. 1087

his 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.