In re the Probate of the Will of Peck — 39 N.Y. St. Rep. 234

Majority

p. 234

In the Matter of the Probate of the Will of Samuel B. Peck, Dec’d.

(Supreme Court, General Term, First Department,

Filed June 12, 1891.)

Headnote

Surrogate’s court—Appeal—Findings—Code Crv. Pro., § 2545.

The appellant from a decision of the surrogate must procure to he filed by that officer such findings of fact as will present the questions which he desires to argue.

p. 235

Appeal from the decree of the surrogate admitting to probate a certain paper writing purporting to be the last will and testament of Samuel B. Peck, deceased.

John J. Adams, for app’lt; James D. Bell, for resp’t

—The record discloses a failure to comply with that part of § 2545 of the Code of Civil Procedure which' 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.” Thus we have nothing-before us except the testimony, the decree and the notice of appeal. It has been repeatedly held that this plain language of § 2545 cannot be disregarded, and that the appellant must procure such findings as will present the questions which he d'esires to argue. Angevine v. Jackson, 103 N. Y., 470 ; 3 N. Y. State Rep., 643; In re Hood, 104 N. Y., 103 ; 5 N. Y. State Rep., 501; In the Matter of Falls, 29 N. Y. State Rep , 759. In Hewlett v. Elmer, 103 N. Y., 164 ; 3 N. Y. State Rep., 1, it was said that by this § 2545 the practice upon a trial by the surrogate of an issue of fact, and preparation of papers upon which an appeal should be heard, was assimilated to the proceedings upon and after trial by the court without a jury.

“ The purpose,” said Finch, J., in Angevine v. Jackson, supra, “ was to- assimilate the practice upon appeals from a surrogate’s decree in the prescribed cases to that which regulated appeals from a judgment rendered by the court or a referee, and to substitute a system which would point out specific errors, and evolve the exact questions intended to be reviewed.” The authority of these cases with regard to the" necessity for a decision by the surrogate, stating separately the facts found and the conclusions of law, has never been questioned. Indeed it could not well be questioned while the language which we have quoted from § 2545 remains unrepealed.

The necessity for such findings is expressly recognized in Burger v. Burger, 111 N. Y., 523 ; 20 N. Y. State Rep., 105, where the doctrine of Angevine v. Jackson was modified, but only as to the requirement of exceptions to findings of fact as to which there is a conflict of evidence. When the learned court there speaks of an appeal from the decision of the surrogate on the facts as well as the law, reference is undoubtedly had to the “ decision ” defined by § 2545.

The opinion of Andrews, J., throughout discusses the necessity of exceptions to findings of fact as distinguished from conclusions of law, and the result of this late decision is to assimilate the practice on appeals from a surrogate’s decree still more closely to that which governs in ordinary litigation. It follow that the present decree was irregular, not having been based upon a proper11 decision.” The remedy, however, was by motion to set it aside for the irregularity suggested or to propose findings and except to a refusal to pass upon them. The appellant is not, therefore, in a position on the present appeal to obtain a proper review of what was actually decided. The point is expressly taken by the respondent and

p. 236

cannot be ignored. We can afford the appellant, therefore, no relief upon the record as it stands. But as the responsibility is not wholly the appellant’s and as there seems to.have been some misunderstanding with regard to the practice, we feel justified in following the course adopted by the learned general term of the fourth department in the Matter of Falls, supra. That course will enable the parties to apply to the surrogate for a decision in writing such as we have pointed out. Upon a proper record being then made up, the appeal can he re-submitted, without further formalities if the parties agree.

Case sent back for such action and proceeding as counsel may deem advisable.

Van Brunt, P. J., and Patterson, J., concur.