Opinion
April 27, 1981
In an accounting proceeding, the appeal, as limited by appellants' brief, is from so much of an order of the Surrogate's Court, Suffolk County, dated January 3, 1980, as, upon reargument, adhered to its original determination denying appellants' motion for an order adjudging the decedent an incompetent nunc pro tunc as of the date of his death. Order affirmed insofar as appealed from, without costs or disbursements. Decedent died intestate and appellants are issue of the deceased's great-grandparents. They can inherit only if the decedent "was at the time of his death an infant or an adjudged incompetent" (EPTL 4-1.1, subd [a], par [9]). Where an adult who has not been adjudicated an incompetent during his lifetime dies intestate, EPTL 41.1 (subd [a], par [9]) does not apply (see Matter of Schaefer, 76 Misc.2d 488; Rohan, 1971 Supplementary Practice Commentary, McKinney's Cons Laws of NY, Book 17B, EPTL 4-1.1, 1980-1981 Est. Powers Trusts Pocket Part, pp 126-127). The original motion was properly denied and the matter shall continue as an uncontested accounting. Hopkins, J.P., Mangano, Rabin and Weinstein, JJ., concur.