42 Barb. 636 | N.Y. Sup. Ct. | 1864
By the Court,
The application to sell the real estate of Sylvanus B. Havens, deceased, to pay his debts, was made by Loper as his administrator. (2 R. S. 100.) It could not be made in his character of guardian for the infant heirs of the deceased. Had there been no general guardian, the surrogate was at once and before taking a further step, required to appoint a guardian to appear- and take care of their interests, in the proceedings. If the infants had a general guardian in the cou'nty of the surrogate, such general guardian was required by statute to appear and take care of the interests of the minor. (2 R. S. 101-6.) Here the administrator, Loper, was the general guardian of the infants, and the surrogate proceeded, without making- any appointment of guardian for the infants, to make an order for all persons interested in the estate to appear and show cause why the application should not be. granted at a point of time about four weeks from the making of the order. The statute requires this order to show cause, to be not less than six nor more than ten weeks from the making of the order; and the case thus presents two important questions : First. Were the infants entitled to a guardian to appear
The case of Bloom v. Burdick, (1 Hill, 130,) is a clear authority that if the infants’ lands had been sold without appointing a guardian for the infants, the sale woxild be void; and that case is approved in Schneider v. McFarland, (2 Comst. 459.) By the application to sell, as administrator of the deceased, Loper became antagonistic to the infants. “The jiroceeding gives a right to litigate between parties in a court of justice, and is therefore a suit. (2 Pet. 249.) It is one by which the infant heir may be deprived of his inheritance, and to which he is an adversary and necessary party, with a right by his guardian to represent and defend his own interest.” (2 Comst. 459.) Did these infants have this right? The only person who could appear for them was their antagonist. • He did not appear for them. Ho one else was appointed to appear. The statutes have been so read as to depx’ive«these infants of the appointment of a person to defend their rights, which the statutes in the strongest terms give them. I do not think, therefore, the surrogate got jxxrisdiction to make the order to show cause. Hor could he shorten the statute time, without losing jurisdiction. It is not an irregularity, and therefore is not cured by the Laws of 1850, p. 117. The petition, appointment.of a guardian for infants, and the order to show cause not less than six weeks nor more than ten weeks, are all necessary to obtain jurisdiction of the subject matter and of the persons of the paxties interested. A defect in this is vital, and all subsequent proceedings void.
I think the judgment should be affirmed, with costs.
Judgment affirmed.
Zott, Scrugham and Z. Z?. Barnard, Justices.]
