In re the Final Judicial Settlement of the Accounts of May

Majority

p. 887

In the Matter of the Final Judicial Settlement of the Accounts of Jane May, Executrix, etc., App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 22, 1889.)

Headnote

Surrogate—Power to change order of reference nunc pro tune to CONFORM TO ORIGINAL DIRECTION.

Where the form of an order of reference made on the final judicial settlement of the executrix’s accounts was that the referee should take the evidence adduced and report the same together with his opinion, but the surrogate intended, and did, decide to make an order for the hearing and determination of all questions arising upon the accounts, and the parties, as well as the referee, acted on the assumption that the latter, under the order made, had the power to hear and determine the issues, the surrogate is justified in so changing the order, nune pro tune, as to conform it to his original direction.

Appeal from an order of the surrogate of Monroe county refusing to entertain an application made by the appellant to settle and sign the case and exceptions on appeal from a decree entered on the report of a referee appointed to examine and settle her accounts, and to sign findings and amending order of reference nue pro tune.

H. H. Woodward, for app’lt; Ivan Powers, for certain infants, resp’ts.

The form of the order of reference was that the referee should take the evidence which should be adduced, and report the same to the surrogate with his opinion thereon. The surrogate, however, intended, and did actually, decide to make such order one for the hearing and determination of all questions arising upon such accounts. The parties, as well as the referee, have proceeded throughout, down to the time this application was made, on the assumption that the referee under the order had the power to hear and determine the issues.

The notice of appeal from the decree was made on that hypothesis, and as though it was an attempt only to recover the decision of the referee after confirmation of his report by the surrogate. Indeed the appellant’s attorney had procured a settlement of the case on appeal by the referee in accordance with the proper practice in cases of a reference of the whole of the issues. Code, § 2546.

Under these circumstances, the surrogate was justified in so changing the order of reference, nunc pro tune, as to conform it to his original direction.

We are of the opinion, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

p. 888

The question sought to be brought into this appeal, pertaining to the surrogate’s power to strike out the referee’s fourth conclusion of law, can only be properly presented when the appeal from the decree itself comes up.

All concur.