In re Hollis , 265 N.Y.S.2d 763 ( 1965 )

Decree unanimously reversed, with costs, and matter remitted to Steuben County Surrogate’s Court for further proceedings in accordance with the memorandum. Memorandum: This proceeding was instituted seeking an inquiry into and delivery to petitioner of $17,000 and a promissory note. It was alleged that this was property of testator and that, following the death of the latter, it had been given by a third party to appellant, father of two named infants. The proof upon the hearing disclosed that in his lifetime testator made, or attempted to make, by oral directions to the third person, a gift of these assets to the infant sons of appellant. It further appears that after testator’s death pursuant to such oral directions the property was delivered to the infants in the presence of appellant, their father. The cash was ultimately deposited in bank accounts in the joint names of the respective infants and one or the other of their parents. The decree herein directs delivery of the property to the representative of the estate by appellant “or such other person or persons in whose possession” the same might be. The court never had jurisdiction of the infants (Surrogate’s Ct. Act § 41, subd. 2) and no special guardians were appointed for them (Surrogate’s Ct. Act § 64). It follows that as to them the decree was a nullity. The matter should be tried de novo following the presentation of an amended petition, issuance of a supplemental citation, appointment of a special guardian or guardians, and the taking of such other action as will fully protect the rights and interests of the infants. (Appeal from a decree of Steuben Surrogate’s Court which decreed that the estate of Clarence A. Kelsey was the owner of certain assets and directed that same be delivered to petitioner.) Present—Williams, P. J., Bastow, Henry, Del Veechio and Marsh, JJ.