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In re Sloane

119 N.Y.S. 667 Court N.Y. App. Div. Decision date 1909-12-03 English

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p. 667
In re SLOANE.
(Supreme Court, Appellate Division, Second Department.
December 3, 1909.)

Headnote

1. Executors and Administrators (§ 504*)—Probate Courts—Proceedings to Settle Accounts.
A proceeding before a surrogate by an administratrix for a settlement of her accounts, to which objections are made, raises an issue of fact, and under the express provision of Code Civ. Proe. § 2545, the surrogate, up
Eor other cases see same topic & § number in Dec. & Am. Digs. 1907 to Sate, & Kep’r Indexes
p. 668
on the trial thereof, must file his decision in writing, stating separately the facts and conclusions of law.
[Ed. Note.—Eor other cases, see Executors and Administrators, Dec. Dig. § 504.*]
2. Executors and Administrators (§ 504*)—Proceeding to Settle Accounts-—Objections—Issue of Fact—Trial on Affidavits.
The trial of such a question on affidavits, instead of oral testimony,, should be discouraged, particularly where nice questions, both of fact and of law, are involved.
[Ed. Note.—For other cases, see Executors and Administrators, Dec. Dig. § 504.*]
Appeal from Surrogate’s Court, Westchester County.
In the matter of the judicial settlement of the account of Grace S-. Sloane, administratrix of Douglas Sloane, to which Maggie Sloane-Mills and others objected. From a decree settling the account (118-N. Y. Supp. 555), the administratrix appeals.
Reversed, and remitted to the-Surrogate’s Court for a further hearing.
Argued before WOODWARD, JENKS, BURR, RICH, and MILLER, JJ.
Chester A. Jayne, for appellant.
Eugene D. Boyer, for respondent Mills.
Theodore M. Hill, special guardian for infant respondents.

The account of the administratrix and the objections thereto raised an issue of fact. Matter of Woodward, 69 App. Div. 286 , 74 N. Y. Supp. 755 . That question was tried on affidavits,, instead of oral testimony, a practice to be discouraged, particularly where, as here, nice questions both of fact and of law are involved. It was important to show definitely the agreement, pursuant to which the-bond and mortgage of February 11, 1892, were given, the agreement pursuant to which the deed of August 10, 1892, was given, and the 'intention of the parties to both transactions. Even though affidavits,, in place of oral testimony, were received, the trial was the trial of an issue of fact, and a decision, as required by section 2545 of the Code-of Civil Procedure, was necessary to support the decree. Although both sides request a decision on the merits, we have no alternative but to reverse the decree, and remit the proceedings .to the Surrogate’s-Court.

Decree of the Surrogate’s Court of Westchester county reversed, with costs-to the appellant, and proceedings remitted to the Surrogate’s Court for further-hearing and decision, as required by section 2545 of the Code of Civil Procedure.

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