In re the Probate of Will of Kaufman — 39 N.Y. St. Rep. 236

Majority

p. 236

In the Matter of the Probate of Will of Virginia P. Kaufman.

(Supreme Court, General Term, First Department,

Filed June 12, 1891.)

Headnote

Surrogate’s court—Appeal—Findings must be filed.

The provisions of § 2545 of the Code as to the filing of findings of fact by the surrogate before appeal brought are mandatory and cannot be disregarded.

Appeal from surrogate’s decree of New York county refusing probate to the alleged will of Virginia P. Kaufman, deceased.

Louis Marshall and Adolph L. Sanger, for app’lt; Wise & Lichtenstein, for resp’t

—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 the Matter of Samuel B. Peck, deceased, it was decided that the provisions of § 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 the Matter of Peck, it is clear the refusal of the surrogate to make any findings was erroneous, and, therefore, the decree must be reversed.

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