#### In the Matter of Mary J. Clark, Ex’rx.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

Executors and administrators—Accounting by executrix op deceased executor.

On an accounting by an executrix of a deceased executor, the referee after finding the state of the account, found that the executor received the fund in part within four months of his death; that he deposited it to his own credit in the bank; that there being “ no evidence as to the disposition of said funds, they are presumed to have come into the hands of the executrix; that such presumption is strengthened by the fact that his executrix when called on to produce his bank book and check book, which would have shown the facts, refused to do so; and that she was personally liable therefor.” *Held,*that when the referee said that the funds “are presumed to have come into the possession of Mrs. Clark,” he meant that he draws that inference and that this amounted to a finding to that effect, and there was no legal error in his so finding.

Appeal from a judgment of the supreme court, general term, first department, affirming the decree of the surrogate.

*Horace Secor, Jr.,*for app’lt; *G. W Cotterill,*for resp’t.

1

 Reversing 25 N. Y. State Rep., 556.

Finch, J.

On the 8th day of July, 1886, the petitioner, describing herself as the widow and executrix of Freeman J. Fithian, deceased, presented her petition to the surrogate, reciting that letters testamentary on the estate of Fithian had been issued on the 15th day of October, 1884, to Lemuel B. Clark; that he died June 9, 1886, having served as executor of Fithian for about one year and three quarters; that his widow, Mary J. Clark, had, on the *683■day preceding the filing of the petition, been duly appointed executrix of the will of said Clark by letters testamentary regularly issued; that Clark had never in his lifetime filed an inventory or rendered an account as executor of Fithian; and asking that Mrs. Clark be cited to show cause why the account of Clark should not be rendered and settled. A citation was issued accordingly, and. on its return Mrs. Clark rendered an account, to which many and serious objections were taken, and the surrogate thereupon made an order referring the account to a referee. This was done underthe provisions of § 2606 of the Code, which gives the surrogate jurisdictions upon the death of an executor to require his executor or administrator to account for and deliver over the trust estate precisely as if the letters of the deceased executor had been revoked in his lifetime and he had been called upon to deliver up the assets. His representative stands in his place for the purpose of such accounting and delivery. The reference was ordered under the authority of § 2546, which permits, among other things, a reference “ to examine an account rendered, to hear and determine all questions arising upon the settlement of such an account which the surrogate has power to determine, and to make a report thereon, subject, however, to confirmation by the surrogate.” The section then gives to the referee “the same power,” and entitles him to the same compensation, “as a referee appointed by the supreme court for the trial of an issue of fact in an action.”

So far the section followed § 6 of chapter 359 of the Laws of 1870, which related to surrogates’ courts in the city of New York. Its next step, however, is much broader in its terms. It reads: “The provisions of this act applicable to a reference by the supreme court apply to a reference made as prescribed in this section, so far as they can be applied in substance without regard to the form of proceeding.” How much or how little is accomplished by this very general language, it may trouble us some day to determine. It seems to open everything and settle nothing. For present purposes we may possibly to some extent avoid its interpretation, since the appeal here pending is taken solely from so much of the decree of the surrogate as modified the determination of the referee. The latter, after hearing the evidence, made formal findings of fact and conclusions of law. He found as facts that a large amount of money was received by Clark which belonged to the Fithian estate, beyond the sums acknowledged in Mrs. Clark’s account; that $3,000 thereof was so received by Clark on the 3rd of November, 1884, and $15,000 on the 23rd of February, 1886, which was less than four months before Clark’s death; that the moneys so received by Clark “ were deposited by him in his own private bank account;” that there was “no evidence as to the disposition of said funds so received by said Clark, as such executor, except the payments for which credit is allowed, and also the investment of $5,000 thereof in the note of Horace F. Clark;” and that the accounting executrix, although in possession of Clark’s bank and check books, refused to produce the same. The referee then found four conclusions of law, as he denominates them: First, that there is due the estate of Fithian *684$24,864.75; second, that there being no evidence of the disposition of the funds by Clark, they are presumed to have come into the possession of his executrix; third, that such presumption is strengthened by the deposit of Clark to his private account and the refusal of his executrix to produce his bank and check books; and fourth, that a decree should be entered against Mrs. Clark individually and as executrix for the sum found due.

When the report was filed with the surrogate Mrs. Clark filed exceptions thereto. We do not know what they were except as they are' recited in the surrogate’s decree. On the hearing before him he allowed five of the exceptions taken by Mrs. Clark, viz., her second exception, which related to a credit claimed and which is immaterial here; her fourth exception, to the finding that the moneys received by Clark were deposited in his own private account, which the surrogate modified by a finding of his own that “said moneys so received were deposited by him to his individual credit in the Hanover National Bank; ” her eighth exception, “ to each and every part of the second conclusion of law which finds or decides that the funds are presumed to have come into the possession ” of the executrix; her ninth exception, to the third conclusion, as to the strengthening of that presumption ; "and her tenth exception, to the award of an individual judgment. The surrogate then made a decree settling the account and awarding judgment against Mrs. Clark as executrix. From so much of this judgment as denied the individual liability of Mrs. Clark, the petitioner appealed to the general term.

Upon that appeal nó case was made, and hence there could be no review of the facts. Code, § 2576. The evidence was not returned, and merely what is denominated a judgment roll. Of course questions of law only could be presented. Whether they could be raised without the trace of an exception to the decision of the surrogate, and by treating his modification of the referee’s report as appellate action rather than a primary and original decision, is an inquiry upon which we do not enter, because no such objection is taken. Those presented and argued stand upon other grounds. They were, as repeated here, first, that the whole case and all the evidence was before the surrogate, and it must be assumed that it warranted his decision; and, second, that there was no finding by the referee that the fund belonging to the Fithian estate, and received by Clark, had passed into the hands of Mrs. Clark. Upon this last ground, chiefly, the general term affirmed the decision of the surrogate, but on this appeal both grounds are relied upon by the respondent.

The first might prove fatal to the appeal but for one consideration. Clark might have disposed of the Fithian fund during the last four months of his life so that no pail; of it was left when he died, and none of it passed to his executrix, and it is said that fact may have been disclosed by the evidence upon which the surrogate acted, and we cannot assume the contrary. The answer is, that the referee found the contrary, and the surrogate assented to that finding. It is the fifth finding of fact and asserts that there is no evidence as to the disposition of the fund by Clark after he *685received it, except in the two respects stated, and involving only a small part of it. To that finding of the referee it does not appear that Mrs. Clark objected. If she did the surrogate refused to sustain her objection, for it is not among those which he did sustain. He confirmed the report in all respects except as he modified it, and so his decision must be tested upon the theory on which it stood, that the fund went into Clark’s hands, and there was no proof that any of it went out except the two items specified.

We are thus brought to consider the view of the general term upon which.it rested its affirmance. It may be conceded that the findings of the referee as it respects their form are open to criticism, and that some of them are rather statements of evidence than of facts, and are wrongfully denominated conclusions of law. And yet I think that in substance and under a fair and reasonable interpretation they amount to a finding of fact that the Fithian fund which Clark received passed on his death into the actual possession of Mrs. Clark, the reasons for and grounds of that finding being stated, so . that the conclusion of her liability followed as a conclusion of law. Substantially the report declares that from the facts that Clark received the fund in part within four months before his death; that he deposited it to his own credit in the bank; that no proof was given of payments by him or any new or different disposition of the money; that his executrix, when called on to produce his bank-book and check-book, which would have shown the facts, refused to do so, he inferred and found that the fund at his death passed into the hands of the executrix, and so, as a conclusion of law, that she was personally liable for its delivery to the petitioner.

When the referee says in his second conclusion of law that the funds “ are presumed ” to have come into the possesion of Mrs. Clark, he evidently means that he draws that inference and that such possession by her is a fact which flows from the proof, and while he might have stated it more precisely and accurately, I think it fairly states the fact. That be placed it among his conclusions of law does not deprive it of its force. *Sherman*v. *Hudson R. R. R. Co.,*64 N. *Y.,*254.

And so I think the general term were wrong in saying there was no such finding. In substance and effect there was. Nor was it without some evidence to support it. The inference was a possible one upon the conceded facts and there was no legal error in the fiiiding.

It follows that the judgment of the general term and the decree of the surrogate so far as appealed from should be reversed. We do not think that we are bound to affirm the conclusions of the referee. They were reported to the surrogate in aid of his decision and decree, and when we reverse that a new hearing should be had as to Mrs. Clark’s individual liability and to leave that officer and the parties in proper freedom we should vacate the order of reference. It is to be hoped as a result that the facts may fully appear and danger of injustice to either party may be averted.

The judgment of the general term and the decree of the snrro*686gate so far as appealed from should be reversed, the order of reference vacated, and. a new hearing granted, with costs to abide the event.

All concur.