In re Kaufman — 14 N.Y.S. 901

Majority

p. 901

In re Kaufman.

(Supreme Court, General Term, First Department.

June 12, 1891.)

Headnote

Appeal from surrogate’s court, New York county.

Proceedings for the probate of the will of Virginia P. Kaufman, deceased. Adolph L. Sawyer, executor of said decedent, appeals from a decree of the surrogate refusing probate of the will. Code Civil Proc. N. Y. § 2545, provides that upon the trial of an issue of fact “the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law. ”

Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.

Lewis Marshall and Adolph L. Sawyer, for appellant. Wise & Lichtenstein, (Morris S. Wise, of counsel,) for respondent.

At the present term of the court we had occasion to consider the question of the necessity of a surrogate making findings of fact in probate cases, (In re Peck, 14 N. Y. Supp. 899 ,) and it was decided that the provisions of section 2545 of the Code were mandatory, and could not be disregarded. In the present proceeding it appears from the record that the surrogate was expressly asked to make findings of fact, which he refused to do, making a record of his refusal, to which a formal exception was taken; and under the ruling we have made, above cited, (In re Peck,) it is clear the refusal of the surrogate to make any findings was erroneous, and therefore the decree must be reversed.