Smith v. Blood

Citations

• 106 A.D. 317
• 94 N.Y.S. 667

Syllabus

<p>Sale, for debts, of a decedent’s real property purchased with pension money—the proceedings therefor cannot be attacked collaterally in the absence of fraud—not void because a guardian ad litem is not appointed — the exemption is personal to, and does not survive, the pensioner — the duty, in any event, rests on the widow and, next of kin to establish the fact in such proceedings.</p> <p>In the absence of proof of fraud or collusion, affecting proceedings in the Surrogate’s Court, which resulted in the granting of letters of administration on a .decedent’s estate, and in the sale of his real estate for the payment of his debts, such proceedings cannot be attacked collaterally.</p> <p>An omission to appoint a guardian ad litem for an infant party to an action or proceeding, process in which was duly served, does not render the. judgment or decree in the action or proceeding void, but simply voidable.</p> <p>Property purchased with pension moneys by a United States pensioner, who died intestate leaving a widow and several minor children, is subject to be sold for the payment of his debts, pursuant to title 5 of chapter 18 of the Code of Civil Procedure (§ 2749 et seq.), as the exemption of such property from sale under execution conferred by section 1393 of the Code of Civil Procedure is personal to the pensioner and does not extend beyond his lifetime or to his family.</p> <p>Even if such property cannot be lawfully sold in such a proceeding, it is incumbent upon the widow and heirs at law of the pensioner to establish in the proceeding the fact that the property was purchased with pension moneys, and if they neglect to do so and the proceeding results in the sale of the property to an innocent purchaser, the widow and heirs at law of the pensioner cannot, in a collateral action brought fourteen years after the sale, successfully attack the title of an innocent grante.e of such purchaser.*</p>