In re Proving the Last Will & Testament of Widmayer

Rumsey, J.: It is conceded that no findings have been made and that the decision of the surrogate is contained in the decree to which an exceptian has been taken, and it is objected by the respondents that as. there are no findings, the case is not in a situation to be heard in this court. Section 2545 of the Code of Civil Procedure requires the surrogate to file in his office a decision in writing’ which must state separately the facts found and the conclusions of law, and provides that either party may, upon' the settlement of a case, request a finding upon any question of fact, or a ruling upon any question of law • that an exception' may be taken to such a finding or ruling, or to a. refusal to so find or rule; and, further, that an appeal from a decree of a surrogate brings up for review by each court to which the appeal is carried each decision to which an exception is duly taken by the appellant, as prescribed in this section. It would seem,. under this section, that nothing is brought up for review upon an appeal from a decree of a surrogate except" such questions as' are-raised by an exception to the decision, or which may be based upon the decision which the statute requires to be made. It is said that such was the rule established in the case of Angevine v. Jackson (103 N. Y. 470). It is also urged that a different rule was established in the case of Burger v. Burger (111 N. Y. 523), but the decision in that case was, that a decree of a surrogate might be'reviewed in a proper case, upon a question- of fact, although no exception had been taken to the finding of fact or to a refusal to-find the fact, and that was the only question, decided. It does not appear from the case that any decision was made by the surrogate, but it is to be inferred that there was such a decision. Such was-the construction given to this case by the General Term of this department in The Matter of Peck (14 N. Y. Supp. 899 ; 60 Hun, 583), in which it was held that if no decision of the surrogate had [303] been made or filed in a proceeding for the probate of a will, the appeal could not be heard, and in that case the General Term sent the case back to the surrogate for further action. Such must be the course-taken in this case. In the face of the plain requirement of section 2545, we are not at liberty to hear-this appeal until the decision required by that section has been filed. What if any exceptions may be necessary after that has been done to enable us. to consider the facts in the case, it is not necessary for us to decide here. It is sufficient to say that until a decision has been made the. case is not properly here, and it should be sent back to the surrogate with directions to take such proceedings as are required by the-, statute, without costs to either party in this court. Patterson, Ingraham and McLaughlin, JJ., concurred. Case sent back to surrogate for further ¡iroceedings, without costs, to either party.