
    In the Matter of the Final Judicial Settlement of the Accounts of JANE A. MAY as Executrix etc., of VASHTI ACER, Deceased.
    
      Surrogate — amendment by, of an order of reference, nunc pro tunc, so as to refer the issues, and not simply to direct a report of the evidence.
    
    Where an order of reference made by a surrogate directs that a referee shall take the evidence and report the same to the surrogate with his opinion thereon, under which order all the parties, as well as the referee, proceed upon the assumption that the order authorized the referee to hear and determine the issues, and an appeal from the decree entered thereon is taken upon that theory, the surrogate (having originally decided to make a reference of the issues), is authorized to enter an order, nunc pro tunc, making the order of reference to conform to his original intention.
    Appeal by Jane A. May, as tbe executrix, etc., of Yasbti Acer, deceased, from an order in tbe above-entitled proceeding, of tbe 21st day of March, 1889, duly entered in tbe office of tbe surrogate of Monroe county, refusing to entertain an application made by tbe said executrix to settle and sign tbe case and exceptions on tbe appeal herein, or to pass upon requests to find, presented pursuant to section 2545 of tbe Code of Civil Procedure, and amending an order of reference made on tbe 12th day of September, 1884, which ordered that tbe bearing of tbe matters in controversy relating to tbe account of tbe executrix and tbe objections thereto be referred to a referee, to take tbe testimony and proofs of tbe parties in relation to tbe said matters and report tbe same to this court with bis opinion therein.
    Tbe proceeding was commenced by the filing in tbe office of tbe surrogate of Monroe county in May, 1884, of a petition by George Hodges, on behalf of Hattie Hodges, Dwella Hodges and Addie Hodges, infants, and a citation was issued, directed to Jane A. May, administratrix, etc., requiring her to show cause why she should not render a final account as such executrix, and return an inventory of tbe estate. Tbe executrix filed her account, and, objections having been filed thereto on behalf of certain persons interested therein, an order of reference was made to a referee “ to take tbe testimony and proof of tbe parties in relation to said matter, and report tbe same to this court with bis opinion thereon.” Tbe referee made his report, and, objections thereto having been filed by contestants, the matter was brought on before the surrogate and the report confirmed except as to the fourth conclusion of law, which was overruled.
    
      H. H. Woodwoard, for the executrix, appellant.
    
      Ivan Powers, for certain infants, respondents.
   Per Curiam :

The form of the order of reference was that the referee should take the evidence which should be adduced, and report the same to the surrogate, with his opinion thereon. The surrogate, however, intended, and did actually decide to make such order one for the hearing and determination of all questions arising upon such accounts. The parties, as well as the referee, have proceeded throughout, down to the time that this application was made, on the assumption that the referee, under the order, had the power to hear and determine the issues. The notice of appeal from the decree was made on that hypothesis, and as though it was an attempt only to review the decision of the referee after confirmation of his report by the surrogate. Indeed, the appellant’s attorney had procured a settlement of the case on appeal by the referee, in accordance with the proper practice in cases of a reference of the whole of the issues. (Code, § 2516.) Under these circumstances, the surrogate was justified in so changing the order of reference, mono pro timo, as to conform it to his original direction.

We are of the opinion, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

The question sought to be brought into this appeal, jiertaining to the surrogate’s power to strike out the referee’s fourth conclusion of law, can only be properly presented when the appeal from the decree itself comes up.

Present- — -Barker, P. J.; Dwight and Macomber, JJ.

Order affirmed, with ten dollars costs and disbursements.  