
    In the Matter of the Application of Caroline J. Dewey, etc.
   Order modified as per memorandum, with costs.—

Mem. by Herrick, J.:

An order has been entered in this matter stating that the decree of the surrogate “is reversed upon the law and facts.” It is contended that that was proper in view of the twelfth finding of the surrogate in his findings of fact, “ that the balance unpaid #is $137.29;” and that it follows as a necessity from the conclusions of the opinion that such finding is reversed. In truth the decision of the surrogate was reversed upon a question of law. If the finding of the surrogate, “ that the balance unpaid is $137.29,” is a conclusion of fact, which I very much doubt, that conclusion of fact was reached by him by reason of the same error of law which was discussed in the opinion, and, therefore, while it may be said that the surrogate’s conclusions of fact are reversed, they are so reversed because of the error of law committed by him. The order entered herein should, therefore, be modified so as to read: Ordered, that the decree of the surrogate of Clinton county be. and the same hereby is reversed upon questions of law, and that the costs and disbursements of said appeal be paid by said executors to the appellant from the estate of Silas II. Dewey. And it is further ordered, that the said proceedings be and the same are hereby remitted to the surrogate of Clinton county for a rehearing herein.

Mayham, P. J., and Putnam, J., concurred.  