
    In the Matter of the Judicial Settlement of the Accounts of Michael A. McOwen et al., as Executors of Charles Wins-low, Deceased.
    
      (Surrogate’s Court, Oneida County,
    
    
      Filed April, 1895.)
    
    Surrogate — Death.
    Upon the office of the surrogate becoming vacant, either by death of the incumbent or upon the expiration of his term of office, his successor has power to take up an unfinished matter where left by his predecessor, continue the proceeding, hear additional testimony that any party interested may offer, and, upon the whole evidence, file a decision which shall contain findings of fact and conclusions of law.
    Petition for the judicial settlement of the accounts of executors.
    
      P. F. Bulger (D. C. Stoddard, of counsel), for petitioner; Leslie W. Kernan, and E. D. Mathews, for the executors; Henry L. Gates, special guardian.
   Calder, S.

— The petition for the judicial settlement of the accounts of Michael A. McOwen and Thomas Manaban, as executors of the last will and testament of Charles Winslow, was presented on the 28th day of December, 1892, and thereupon a citation was duly issued, directing that all parties interested be and appear at a surrogate’s court, in the city of Utica, on the 16th day of January, 1893. The executors’ account was filed Decernher 28, 1892. Objections to the same having been filed, testimony in respect thereto was taken from time to time before Surrogate Bright. During the evening of the 4th of June, 1894, the day upon which the case was submitted, he died, leaving the questions in dispute undecided. It was thereafter stipulated that upon the evidence a reargument should take place before his successor. Same was had on the 28th day of September, 1894, aud on December 18th the surrogate filed his opinion. His term of office expired on December 21, 1894. An affidavit was subsequently presented to the present surrogate, containing a statement of the proceedings herein, upon which an order to show cause was granted, returnable February 25, 1895, why the same should not be completed. All parties were heard upon the motion. This follows the practice suggested in re Espíe, 2 Kedf. Surr. 445.

The opinion of the former surrogate was expressive of his views upon the questions in controversy, and directed that findings in harmony with his conclusions be proposed for settlement. No findings of fact or conclusions of law were made, and nothing was done upon which a proper decree could be entered. That the surrogate did not consider that he had filed anything more than an opinion was clearly indicated by his concluding directions. An opinion contains the views of the judge in relation to a given subject. A decision embraces the findings of the court, upon which a decree or judgment may be entered. Section 2545 of the Code of Civil Procedure provides that the surrogate must file in his office his decision in writing, which must state separately the facts found and the conclusions of law. The repeal of section 1033 is immaterial, as that did not apply to the practice in surrogate’s court. Hartwell v. McMaster, 4 Redf. Sur, 392. What a decision should contain is well settled, and the questions in relation thereto have been frequently passed upon. Angevine v. Jackson, 103 N. Y. 470; 3 St. Rep. 643; In re Falls' Estate, 29 St. Rep. 769; In re Peck, 39 id. 234; In re Kaufman, 39 id. 236 ; Hartwell v. McMaster, supra. A case on appeal will be remanded when it appears that no decision has been filed containing findings of fact and conclusions of. law. In re Falls' Estate, supra. No decision in this proceeding was, therefore, filed, as provided by the Code of Civil Procedure.

In what manner and from what point can the present surrogate proceed ? Three ways are suggested : First To file findings of fact and conclusions of law in harmony with the opinion of the former surrogate. Second. To take up the matter de nova. Third. To take up the proceedings at the close of the evidence, hear additional testimony that any party interested may offer, and upon the whole evidence file a decision which will contain findings of fact and conclusions of law.

I do not believe that the first or second method is the proper practice to follow. To sign findings based upon the opinion of the former surrogate would not make them his, for he did not formulate them; and, to be his, he should sign them. Neither would they be the findings of the present surrogate, predicated upon what he believed to be the correct interpretation of the evideuce, for he did not hear the testimony, nor has he read the evidence. To sign findings in this matter would be simply a mechanical act, not conclusive upon any party in the controversy. In Re Will of McCue, 17 Wldy. Dig. 501, the evidence was taken before the surrogate, who filed an opinion upon the last day of his term of office, expressing his views, but not containing findings of fact or conclusions of law. His successor, proceeding upon his opinion as filed, admitted the will to probate. It does not appear that the surrogate reviewed the evidence, or that anything was done upon notice to the contestants, or that a statement was presented to the court containing a history of the proceeding. It was held that great doubt existed as to the power of the successor to make formal findings upon the opinion of his predecessor. Here all the parties are in court, and have been cognizant of every step in the proceeding. The evidence was transcribed at a large expense to the estate, the preparation of counsel involved a great amount of labor, and the court was engaged a considerable length of time, and to urge that the matter be taken up de nova seems unnecessary, if not improper. The personnel of the court may change, but the court itself is the same ; the office continues. I appreciate the suggestion of counsel that the witnesses and the testimony offered can, perhaps, be better understood if the court deciding the questions may have the benefit of the presence of the parties testifying. It would be a hardship, however, to compel proceedings of this character to be taken up de nova. If such were the case, upon the entry of each surrogate upon the duties of his office, it would seriously interrupt the work of the court, incur a large expense, and, in many instances, do injustice. I do not believe the legislature intended to impose such a burden upon the court or litigants.

The Code provides (sections 2513, 2500) that the surrogate, in his discretion, may appoint and at pleasure remove a stenographer', and that every deposition, petition, report, account, voucher or other paper must be carefully preserved, and that he shall deliver to his successor all papers and books kept by him; that said stenographer (section 2541) must, under the direction of the court, take full stenographic notes of all proceedings in which oral proofs are given, and the testimony must be legibly written out at length from the notes; that the minutes, after being properly authenticated, must be filed. The above sections, taken together, make the minutes records in the surrogate’s office, and it is, therefore, unnecessary to take testimony again. Where testimony on the probate of a will has been commenced before the surrogate, and his term of office expires before it is completed, his successor in office need not take the testimony de nova. Reeve v. Crosby, 3 Redf. Sur. 74. The same principle in laid down in Re Martinhoff, 4 id. 286, and in Re Espie, 2 id. 446.

The ithird proposition I believe to be the correct one to follow. Section 2481, subd. 8, provides that a surrogate has power to complete any unfinished business pending before his predecessor in office, including proofs, accountings and examinations. This is unfinished business, and is an accounting, and the statute is broad enough to confer j urisdiction upon me to complete this proceeding. The general rule drawn from the cases last cited is that upon the office of the surrogate becoming vacant, either by death of the incumbent or upon the expiration of his term of office, his successor has power to take up the matter where left by his predecessor, continue the proceeding, and in a proper manner carry the same to its final determination. It is due, however, to any party interested that he have the right to offer additional or explanatory evidence upon any part of the issues involved. In this manner every interest will be fully protected. Upon reading.the evidence taken by the former surrogate, and after hearing any .additional proofs that may be offered, the present surrogate can then make his decision in writing, containing findings as required by the Code, upon which a decree may be entered.

An order may, therefore, be entered reopening the case, and giving any party interested the right, upon proper notice, to produce additional proofs, after which, at a time to be agreed upon, the case may be submitted.

Ordered accordingly.  