
    In the Matter of the Final Judicial Settlement of the Accounts of James A. Walrath, Adm'r of the Estate of Matilda Sunderlin.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 9, 1893.)
    
    Appeal—Surrogates—Case.
    In appeals from the decree of a surrogate, where the appellant seeks to • review the fact found by the surrogate, a case containing the evidence should be made.
    Appeal by Sarah 0. Thumb, co-administratrix, from that part of the decree of the surrogate of Montgomery county disallowing the individual claim of the-appellant against the estate.
    
      J. W. Hill, for app'lt; Huston & Herrick (Hiram L. Huston, of •counsel), for resp’ts.
   Mayham, P. J.

as co administratrix in the

The appellant, as co administratrix in theabove entitled matter, presented on this final judicial settlement a claim for all the surplus of this estate after the payment of the expenses of administration, and all the other debts proved and allowed against the estate of the deceased, which claim was based upon an alleged agreement between the deceased in her lifetime -and this appellant, that the appellant was to support the deceased during the latter part of her life, and in consideration therefor should after the death of the deceased have all her property and •estate.

The administrator who files the petition for a final judicial accounting is the next of kin of the deceased.

The case contains none of the evidence taken before the surrogate, but contains a series of findings, and refusals to find, by the surrogate, from which the appellant claims that as matter of law the appellant should be decreed the balance of this estate remaining in the hands of the administrator.

But the surrogate expressly refuses to find : “ That an agreement was entered into and executed between Matilda Sunderlin and claimant, whereby the claimant was to provide and furnish a house, board and lodge the deceased during her lifetime, and in •consideration of the same claimant is to have the property left by the deceased at her death.”

This refusal to find expressly negatives the claim of the appellant, and if correct leaves the claim of the appellant entirely up-supported by any facts by which it can be upheld.

This finding of fact, if correct, and permitted to stand, takes away appellant’s right to recover upon her alleged contract, and while from some of the surrogate’s findings it might be assumed that the deceased contemplated making some disposition of her property in favor of the appellant, yet there is nothing found by him w nich establishes a gift of this property by the intestate to the claimant either inter viuos or causa mortis.

There was no such delivery to claimant as to constitute a gift inter vivos. Nor is it found by the surrogate that any suggestion of the intestate as to her intention to give her property to the claimant was made by her in contemplation of her sudden or immediate peril of death, and to take effect on the happening of that event, so as to constitute a donatio causa mortis.

There is nothing, therefore, in the record before us from which it can be determined as a question of fact that the agreement on which the appellant claims, was ever made or that she is entitled to the residue of the deceased’s property under any valid gift, and as the evidence before the surrogate is not before this court or embraced in the record, this court cannot review the findings of fact made by the court below.

In appeals from the decree of a surrogate when the appellant seeks to review the fact found by the surrogate, it seems that a case should be made containing the evidence. By § 2576 of the Code of Civil Procedure, it seems that if a party desires to review the facts a case must be made and settled by the surrogate.

The language of that section is: “ If it (an appeal) is taken from a decree rendered upon the trial by the surrogate of an issue of fact, it must be heard upon a case to be made and settled by the surrogate as prescribed by law for making and settling cases upon an appeal in actions." And upon this subject the authorities seem abundant and uniform. Spence v. Chambers, 39 Hun, 193; Angevine v. Jackson, 103 N.Y., 470; 3 St. Rep., 643; Burger v. Burger, 111 N. Y., 530; 20 St. Rep., 105; Matter of Falls, 29 id., 759; Matter of Marsh, 45 Hun, 109; 9 St. Rep., 441.

As the appellant has not thought proper to present a case containing the evidence on this appeal, and as the findings of fact of the referee do not support her theory of a contract, and as the decree gives the property to the next of kin, where the law in the absence of any facts requiring a different disposition carries it, the decree must be affirmed.

Decree affirmed, with costs, with leave to appellant on payment of costs of the appeal to make a case under §2576 of Code of Civil Procedure, and on such case have a reargument of this appeal.

Putnam and Herrick, JJ., concur.  