In re for the Revocation of Letters Testamentary of Burr

Majority

p. 518

In the Matter of the Application for the Revocation of Letters Testamentary of George M. Burr, as Sole Surviving Executor of the Estate of Henry A. Sheldon, Deceased, Appellant. Isabel D. Burr, Appellant; Mary E. Wiggins, Respondent.

Third Department,

December 7, 1906.

Headnote

Executors and administrators — removal of. executor — when Appellate . Division may send issue to referee.

Under section 2.586 of the Code of Civil Procedure the Appellate Division on appeal has the same power to decide questions of fact as the surrogate lias apd may take further testimony through a referee.

When an executor, who has been removed from office for failing to inventory a demand-' note due from him to the estate, claims to have paid the note and accounted therefor, the Appellate Division will send the issues to a referee, if the executor did not have a. chance to litigate the question before the surrogate.

Separate appeals-by George M. Burr, as sole surviving executor, etc., and by Isabel D. Burr from a decree of the Surrogate’s Court of tbé county of Broome, entered in said Surrogate’s Court on the 20th day of July, 1905, revoking letters testamentary theretofore issued to said" George M. Burr upon the estate of Henry A. Sheldon, deceased.

S. C. Millard, for the appellant Burr, as executor.

Taylor L. Arms, for appellant Isabel D. Burr.

Isaac Weill, for the respondent.

The surrogate has found that the executor was indebted to the estate-in a'large amount, evidenced by his, note for $10,984, dated November 9, 1899, playable on demand, which he did not include in the "inventory, and that snch omission was misconduct on his part. This finding is based upon an admission of the executor contained in an entry in an account book in evidence kept by him. Counsel for the executor urges that no such claim was made in the petition" for the removal of the executor or litigated on the trial, and that the first knowledge he or. the executor had that any such question was involved was when the findings were made on

p. 519

the settlement of the'case, over eight znonths afier the decree of removal was entered and many inonths after the appeal therefrom had been perfected. It is also claimed that the note referred to was paid by the executor and the aznount thereof included in the inventory as a portion of the balance stated to be in the bank and that he can produce vouchers and proofs showing these facts.

' Section 2586 of the Code of Civil Procedure provides that “where an appeal is takezi upon the facts the appellate court has the same power to decide questions of fact, which the surrogate had; and it may in its discretion, receive further testimony or documentary evidezice, and appoint a referee.”

The appeal here is upon the facts as well as upon the law.

In view of the gravity of the charge and the claim of the executor of its falsity we think he should be afforded an- opportunity to make the proofs which it is said he possesses in relation thereto.

We, therefore, direct that it be referred to Lynn J. Arnold,-counselor at law of Cooperstown, N. Y., to take testiznony and report to this court, with bis opinion, whether the note referred to was paid by the executor and the aznount thereof included in the inventory of the estate. Until the coming in of. his report we withhold decision of any question involved on tlie appeal.

. Present --- Parker, P. J., Smith, Chester, Cochrane and Kellogg, JJ.

Order of reference directed to Lynn J. Arnold, counselor at law of Cooperstown, U. Y., upon the question specified in per curiam opinion.