(concurring). The plaintiffs have been deprived of their property without actually having a day in court. It is claimed by respondents that they had all the notice the law required at the time the proceeding was commenced in the Surrogate’s Court.
It is likely that prior to September 1, 1880, such a proceeding was deemed commenced by the filing of a petition and the issuance of process; and that actual service was not necessary if the time of the commencement of the proceeding was in question. Such seems to have been the common-law rule in this State relative to the commencement of actions either at law or in equity (Webb v. Pell, 1 Paige, 564; Koon v. Greenman, 7 Wend. 121; Van Hoesen v. Holley, 9 id. 209; Jackson v. Brooks, 14 id. 649); and there seems to have been no statute providing a different rule in Surrogate’s Court. So the proceeding might be deemed commenced and would have followed the former practice, except for the fact that a different rule was prescribed as to future proceedings. Section 3348 of the Code of Civil Procedure (effective September 1,1880) provided that in proceedings of this nature where “ a citation issued from a Surrogate’s Court, has been served upon one or more, but not upon all, of the persons to be served * * * £he * * * proceeding is not deemed to have been commenced * * No citation or equivalent process had been served on September 1,1880. The procedure prescribed by the new Code then became controlling and the plaintiffs were entitled to be served with citations. The subsequent proceedings were invalid.
Even were we to hold that the administrator was entitled to proceed under the former statute we would still be obliged to reach the same conclusion. The contents of the petition were also prescribed by the Revised Statutes. (2 R. S. 100, § 2.) There was failure to state essential Jurisdictional facts in the petition; and there was such gross irregularity in the later proceedings that the surrogate was not justified in ordering a sale. There were infants, who never in person or by guardian were given opportunity to question the claim of the life tenant, at whose behest the proceeding was undertaken; or to be represented in any way until after their property had been sold and conveyed away. It was then that a nunc pro tunc order was made, not at their request for they knew nothing about it at all, appointing a special guardian who did nothing and could do nothing. Thus was an attempt *477made to give color of légality to that never having legality. Orders nunc pro tunc are to correct informalities in the record, not to deprive parties of valuable rights. I deem further discussion of the facts unnecessary. In order that an heir or devisee, particularly an infant, may be divested of his title to real property in such a proceeding there must be strict compliance with the statute. (Matter of Reed, 214 N. Y. 383; Matter of Roberts, Id. 369.)
The provisions of the statute were not followed here, whether we assume that either the old or the new practice applied to this proceeding. The plaintiffs were deprived of their property without due process of law. The validity of the decree is presumptive only and may be attacked collaterally if lack of jurisdictional facts is shown. (Washbon v. Cope, 144 N. Y. 287, 295; Roderigas v. East River Sav. Inst., 76 id. 316.) Under such circumstances as have been here presented, courts will not be zealous to find some theory upon which the method of depriving infants of their property may be sustained.
The Statute of Limitations has not run. The plaintiffs as remaindermen did not become entitled to possession until the death of the life tenant. (Jefferson v. Bangs, 197 N. Y. 35.) I concur for reversal.
Judgment reversed on the law and facts, with costs, and judgment directed in favor of the plaintiffs, with costs, declaring the sale void, and the deed canceled of record, and adjudging that the plaintiffs are the owners of and entitled to the immediate possession of the real estate described in the complaint.
The court amends, disapproves and makes new findings, as follows:
Eleventh finding is amended by inserting in line four the words “ in form ” after the words “ decree was.”
Twelfth finding is amended by inserting in the first line the words “ in form ” after the word “ was.”
Seventeenth finding is amended by inserting after the word “ conveyance ” in the first line the words “ in form.”
Eighteenth finding is amended by inserting in line one after the word “ Flynn ” the words “ as life tenant.”
Twenty-third finding is amended by inserting in line two after the word “ premises ” the words “ in form.”
The four conclusions of law are disapproved..
The court finds all facts contained in plaintiffs’ request No. 14; and finds plaintiffs’ proposed conclusions of law.