
    In the Matter of the Application of Andrew Dittrich, Executor under the Last Will and Testament of Mary Dittrich, Deceased, Respondent, for the Removal of Ellen C. Duffy, as Executrix and as Testamentary Trustee under the Said Last Will and Testament, Appellant. Joseph M. Dittrich, Respondent.
    Second Department,
    June 14, 1907.
    Surrogate — practice — proceeding to remove executor — findings and conclusions necessary.
    When .on a proceeding to remove an- executor an answer to the petition is filed- ■ raising material questions ,of fact, the surrogate must.take evidence supporting . the allegations-of the petition and answer and make findings of fact and conclusions of law;, otherwise a decree removing the'executor will be-reversed.
    ■ Appeal by Ellen O. Duffy, as executrix, etc., from a decree of .the Surrogate’s Court of -Kings county, entered in said Surrogate’s, Court on the 24th day of September, 1906, removing her as,executrix and testamentary trustee, etc., of -Mary Dittrich,- deceased, and requiring her to account for all money and property in her hands. ■ .
    
      P. J. Rooney [Henry L. Scheuerman with him on the brief], for the appellant.
    
      Samuel H. Evins [John P. East with him on the brief], for the petitioner, respondent.
    
      Francis G. Caffey, for the respondent Joseph M. Dittrich.
   Hooker, J.:

The appellant’s coexecutor applied by petition to the Surrogate’s Court for her removal (Code Civ. Pfoc. § 2685), and presented a voluminous affidavit which accompanied the petition as required by section 2686 of the Code. The surrogate, -upon this preliminary hearing, being satisfied of' the truth of the allegations of the petition, issued a citation according to the prayer.thereof. Upon the return of the citation the appellant filed her answer to the petition, and it can 'hardly be doubted that her answer raised material questions of fact. The surrogate took no evidence whatever, either in support of the allegations' of the petition or those of the answer, and the decree, appealed from was signed and entered without the support of any findings of fact or conclusions of law.

The appellant contends that the decree should be reversed because of this infirmity, and her contention seems to be correct. Matter of Monroe (142 N. Y. 484) was an appeal from a judgment affirming-a decree of the Surrogate’s Court, which revoked letters of administration granted to the appellant. In criticising the insufficiency of the findings of fact upon which the decree -was entered the Court of Appeals said (p. 488): “ The very general charges of this ■ petition were sought to be sustained by affidavit proof as required by the Code, in order, that citations might issue. (Code C. P. § 2686.) As this court has no power to weigh the evidence on disputed questions of fact, and can only deal with legal error, it becomes necessary to examine the findings of fact and conclusions of law upon which the decree-rests. The case- on, appeal is voluminous and the evidence -has been introduced to a consider-ft able extent without regard to the issues, framed by the petition and answer. ■ There are findings of fact upon matters not included in the allegations of the petition ; there are numerous alleged findings of- fact the mere statements of conclusions, entirely destitute of specific facts and utterly without value. The Code does not contemplate such practice, and to permit it would be to impose ■upon an appellate tribunal the - laborious duty of searching the, record for facts that should be incorporated in the findings.”

That parties defeated in proceedings brought under sections 2685 et seq. of the Code are entitled to review the decree entered certainly must be conceded. It seems to be entirely at variance with the provisions of the Code and the theory of our practice that a hearing had upon, such an application should result otherwise than' in the court making findings of fact upon' which a decree may be entered. , Matter of Scott (49 App. Div. 130) is directly in point. There it was held that the decree of the Surrogate’s Court, removing a trustee under' the last will and' testament,,.should be reversed where the matter was heard before the surrogate1 upon affidavits, and an order was made for the removal of the appellant, “ and no findings of fact or conclusions of law were made, as required by-the statute.” . ~W¡q approve the reasoning of this case, which must control. The contention of the respondents that Matter of Waterman (112 App. Div. 313) is authority for the practice indulged in is.not sound. At page 318 it appears from the opinion in that case that findings of fact and conclusions of law were made and exceptions thereto were taken'. '

The decree appealed from should, therefore, be reversed, with costs, and' the proceedings remitted to the -surrogate.

Jenks, G-ayhoe, Rich and Miller, JJ., concurred.

Decree of the Surrogate’s Court of Kings county reversed, with costs', and proceedings remitted to the surrogate for further action in accordance with opinion of Hooker, J.  