
    In the Matter of the Estate of Caroline S. Sherwood, Deceased. Frank O. Brown and Clarence E. Dow, as Executors, etc., of Caroline S. Sherwood, Deceased, Appellants; Lotta Hopper, Respondent.
    
      Surrogate’s decree against executors — reversed, when there is- no proof as to their possession of funds of the estate and no decision or finding by the surrogate.
    
    Upon the affirmance by the Appellate Division of a judgment obtained against the executors of an estate, the executors took and perfected an appeal from the judgment to the Court of Appeals, but gave no security to stay execution. The judgment creditor thereupon instituted proceedings against the executors in the Surrogate’s Court under section 2722 of the Code of Civil Procedure, to compel payment of the judgments. The answer filed by the executors raised an issue as to the possession of funds applicable to the payment of the judg^ ments. The proceeding resulted in a decree reciting that the fact of the possession of such funds was proved to the satisfaction of the surrogate and directing the executors to pay the judgments or to file a bond to secure such payment.
    Upon an appeal taken by the executors from such decree it was admitted that no proof, as to the possession by the executors of funds applicable to the payment of the judgments was produced upon the hearing before the surrogate, and it appeared that the surrogate made no decision in writing and no findings, and that no request was made for findings or any exception taken or filed, and that there had been no settlement of the case upon appeal.
    
      Held, that the decree should be reversed and the proceeding remitted to the Surrogate’s Court for trial and decision.
    Appeal by Frank O. Brown and another, as executors, etc., of Oaroline S. Sherwood, deceased, from a decree of the Surrogate’s Ootirt of Queens county, entered .in said Surrogated Court on the 16th day of January, 1902, requiring the payment by said executors of the claim of Lotta Hopper, a petitioning creditor.
    
      Thomas Abbott McKennell, for the appellants.
    
      Hamilton R. Squier, for the respondent.
   Hirschberg, J.:

The respondent, Lotta Hopper, recovered a judgment in the Supreme Court against the appellants, Frank O. Brown and Clarence E. Dow, as executors, etc., of Caroline S. Sherwood, deceased, on the 1st day of May, 1901, for $3,350.05. On appeal to the Appellate Division of the first department the judgment was affirmed, and another judgment in favor of the respondent and against the appellants for the costs of such appeal, $106.85, was ■entered on tlie 30th day of December, 1901. Subsequently the appellants appealed, .from the decision of the Appellate Division to the Court of Appeals and perfected their appeal in that court, but gave no security to stay execution upon the judgments. The respondent thereupon duly petitioned the Surrogate’s Court of Queens county, the court having jurisdiction of the estate, to compel payment of her claims under section 2722 of the Code of Civil Procedure, and this appeal is taken from the decree made in that proceeding by which the appellants are required to pay the judgements or to file a bond to secure such payment as. provided in the decree. .

The’verified answer filed by the appellants did not require a dismissal of the proceeding under the terms of section 2722 {supra). It did raise an issue as to the possession of fund's by the appellants applicable to the payment, of the pétitioner’s. judgments, and the decree recites that on the hearing the fact of such possession was proved to the satisfaction .of the surrogate. The learned counsel -for the respondent admits that no proof was given upon the hearing or trial, but asserts in his brief that “ the learned surrogate held that from the account and will on file in his office, which were then read, and the admissions of the answer and the concessions of counsel in open court, the payment could be made as suggested, and thereupon he made the decree appealed from.” There is nothing in the record showing the reading or the contents of the papers referred to or the extent and nature of the concessions, beyond a ■recital in the decree of the fact of the appeal to . the Court of Appeals as herein stated. The surrogate made no decision in writing and no findings, and no request was made for findings, and no exception was taken of filed. There has been no settlement of a case upon appeal. Under the circumstances I cannot see why the determination of this appeal .is not controlled by the decision of this,court in Matter of Daymon (47 App. Div. 315), wherein it was held that an appeal from a decree of a. Surrogate’s Court, made upon an executor’s accounting, at which an issue of fact was tried, presents no question for review where the surrogate has neglected to make findings as required by section 2545 of the Code of Civil Procedure. That section assimilates the practice in the Surrogate’s Court to a considerable extent with the practice on the trial of an issue in the Supreme Court, and applies apparently to all cases of the trial by the surrogate of an issue of fact, including such a hearing or trial as was required in this case.

The learned counsel for the respondent claims that, inasmuch as it was the duty of the party desiring to appeal to procure such findings or refusals as would present through appropriate exceptions the questions which he might desire to argue, the failure of the surrogate to make findings is no ground of objection to his decision on appeal, and the decree should, therefore, be affirmed. In support of this contention he cites the cases of Matter of Hood (104 N. Y. 103) and Matter of Sprague (125 id. 732). Each is authority for the proposition that in the absence of findings or exceptions no-question is presented for review, and the latter case, viz., Matter of Sprague, was cited by Mr. Justice Willard Bartlett in the opinion in Matter of Daymon (supra). He there said (p. 316) :. “ Under these, circumstances, the proper course to pursue is to remit the case to the surrogate as an undecided cause, in order that he may make and file findings as prescribed by law. This is the procedure which we have adopted in eases in the Supreme Court where the trial judge has failed to make findings or the short decision now permitted in lien thereof by section 1022 of the Code. (Hall v. Beston, 13 App. Div. 116; Shaffer v. Martin, 20 id. 304.) The decree was accordingly reversed and the proceeding remitted,, as suggested.

The practice does not appear to be uniform. In the former General Term of the first department the appeal under similar circumstances was dismissed. (Matter of Bradwa/y, 74 Hun, 630.) But the procedure adopted as to cases in the Supreme Court, referred to in the opinion in the Daymon Oase (supra), has been uniformly followed in this department, upon the theory that a judgment not based upon a decision is unsupported. In the case at bar, however,, as has been seen, the decree is not only unsupported by the decision or findings required by the Code of Civil Procedure, but has been, made without proof upon the issue -raised, and neither reason nor authority will justify an affirmance. While the appellants might have presented a decision for the signature of the court or requested findings as a basis for review upon appeal, they could not reasonably be expected to furnish proof in support of the claims of the respondent, and such proof was a prerequisite to a decision in support of the decree appealed from.

The decree should be reversed and the proceedings remitted to the Surrogate’s Court for trial and decision, the costs of the appeal to abide the final award of costs.

All concurred.

Decree of Surrogate’s Court of Queens county reversed and proceedings remitted to the Surrogate’s Court for trial and decision, costs of this appeal to abide the final award of costs.  