In re Hale's Estate — 61 N.Y.S. 596

Majority

p. 596

In re HALE’S ESTATE.

(Supreme Court, Appellate Division, First Department.

December 8, 1899.)

Headnote

1. Reference by Surrogate.

A surrogate has, on application to remove .an executor, authority, under Code Civ. Proc. § 2546, to order a reference, of bis own motion, to obtain needed information on questions of. fact involved.

3. Same.

It is improper to insert in the order a recital that the petitioner has-an unbarred claim; this and other questions being for the determination, of the surrogate on the coming in of the referee’s report.

Appeal from surrogate’s court, New York county.

' Petition of Charles H. Stone, executor of Augusta W. Stone, deceased, to remove Lucy Ann Hale and another, executrix and executor of Joseph P. Hale, deceased. From an order of reference of the surrogate to take and report evidence, said executrix and executor of said Hale appeal. Modified.

Argued before VAN BRUNT, P. J., and McLAUGHLIN, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

Rastus S. Ransom, for appellants.

Howard Mansfield, for respondent.

The proceeding is brought- on petition to secure the-removal of the executor and executrix of Joseph P. Hale, deceased, upon the ground of certain alleged facts of misconduct in dealing with the estate. By the answer, these were sought to be explained or denied, and the statute of limitations was interposed as a bar. Upon the hearing, the surrogate, of his own motion, made the order of reference appealed from. The reference was thus ordered by the-surrogate for his own information, and was neither granted upon motion of the petitioner, nor opposed by the executor and executrix-And he, having jurisdiction over the subject-matter, had the right,. > of his own motion, to so order a reference to obtain needed informa-.

p. 597

tian upon the question of fact involved, pursuant to section 2546 of the Code of Civil Procedure. As said by the Presiding Justice in Re Pearsall (Sup.) 4 N. Y. Supp. 365 :

“In the determination of this appeal, it is not at all necessary to consider this application upon the merits. Under section 2546 of the Code, the surrogate * * * is empowered to appoint a referee to take and to report to the surrogate the evidence upon any specific question of fact, and make a report thereon,—subject, however, to the confirmation of the surrogate. * * * As to the merits of the application, it is not at all necessary to consider them. After the surrogate has determined the application on its merits, then there is time enough for us, if an appeal is taken, to consider the questions which have been so lengthily set out in the appellant’s brief.”

See, also, In re Post (Sup.) 19 N. Y. Supp. 18 .

We think, however, that the recital in the order that the petitioner has an unbarred claim was improperly inserted, and should be stricken out; leaving that, as well as the other questions, for the determination of the surrogate upon the coming in of the referee’s report.

"The order should accordingly be modified by striking out that recital, and as so modified it should be affirmed, without costs. All ■concur.