#### Matter of Estate of Andrew Hood, Deceased.1

*(Court of Appeals,*

*Filed January,*1887.)

1. Practice — Appear from Surrogate’s Court — Failure to make findings — Effect of — Code Civ. Pro., § 2545.

The failure of a surrogate to make findings of fact or law in proceedings had before him, as required by Code Civ. Pro. § 2545, is not available as error on appeal by a party taking no exception to the decision or decree. It is the duty of the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue, or he cannot review the rulings of which he complains.

2. Executors and administrators — Removal — Accounting. An executor who has been removed maybe compelled to account and pay over the moneys in his hands to his co-executor.

3. Same.

After the executor had been removed he was proceeded against by his former co-executor, who continued in office for an accounting, and he set up a former accounting, through which he claimed to hold the assets remaining in his hands as testamentary trustee. He was not discharged by the former accounting and was not directed to hold the remaining assets as trustee, nor was he credited with such transfer; but the decree directed as to the assets remaining, that “ the said executor shall hold and invest pursuant to the powers and directions contained in said last will and testament.” There *502had been no payment to defendant as trustee, no new account opend and' kept in the new capacity, and no separation or division of the fund allotting to the beneficiaries their exact and specific proportions. *Held,*that he continued to hold the assets remaining in his hands after the former accounting as executor, and must account for them as such.

Appeal from an order of the supreme court, general term, second department, affirming an order of the Surrogate’s Court of Westchester county, directing the filing of an account of an executor who had been removed.

*JEdwará, P.*Wilder, *A. J. Dittenhoefer and John N. Hayward,.*for appl’t; *John J. Maclclin,*for resp’t.

1

**Affirming 30 Hun. 657*Mem.*

Finch, J.

The petition presented to the surrogate, as the ground of the relief sought, that Frederic Hood and the petitioner had been originally appointed executor and executrix of the last will of Andrew Hood; that the letters testamentary issued to Frederic Hood had been revoked for his misconduct, leaving-the petitioner sole remaining representative of the estate; that previous to such revocation, and about January, 1869, the said executor had collected bonds and mortgages, winch were assets in his hands, amounting to between forty and fifty thousand dollars; and upon these facts the petitioner asked for an order that the removed executor account for and deliver over to the-executrix the assets remaining in his hands.

The Code authorizes the surrogate to call an executor or administrator to account where the letters have been revoked (section 2724,) and more specifically provides that “ the surrogate’s-court has the same jurisdiction upon the petition of the successor or of a remaining executor, administrator, guardian, or trustee to compel the person whose letters have been revoked to account for or deliver over money or other property, and to settle his account, which it would have upon petition of a creditor or person interested in the estate if the term of office conferred by the letters had expired by its own limitation ” (section 2605). Upon the petition filed the surrogate had jurisdiction to grant the relief sought. The executor’s answer alleged that he had accounted before the surrogate in 1869, for all assets held by “him. in that character, and that thenceforward he retained the-balance in his hands as testamentary trustee. Other defenses were pleaded, but need not be here stated for reasons which will appear.

On the hearing the surrogate made an order requiring the ■ appellant to account as executor, and the latter having filed an account, the surrogate made a final order, adjudging that the-appellant held nearly §80,000 received as executor, which he should pay over to the petitioner. From each of these orders which have been affirmed by the general term the removed executor appeals. Whether the order to account was merely preliminary, or final in so far as it adjudged the character in *503which the assets were held, *(In re*Halsey, 98 N. Y. 48,) is of no consequence, in view of the fact that the appeal from the order finally rendered by its terms brings up for review the order to account.

The return shows that the surrogate made no findings of fact or law as is now required, (Code, § 2545; *Angevine*v. *Jackson,*103 N. Y. 470, S. C. 3 N. Y. State R., 643,) and that no exceptions were taken to his decision or decree in any form. But on the hearing, and during its progress, three exceptions were taken, and only three. These raise the sole questions available to the appellant in this court. His own counsel suggest the absence of requisite findings, insisting that for such cause the decree is irregular. That does not follow. It is the duty of the party appealing to procure to be made such findings or refusals as will present, through appropriate exceptions, the questions which he desires to argue. If he suffers this necessary step to be omitted, lie will find himself without the means of reviewing the rulings of which he complains. The three exceptions taken are, therefore, the sole basis, and mark the limits of this appeal.

These *were*— First, to the admission of the order revoking the executor's letters testamentary; second, to a ruling which sustained an objection to an inquiry whether he had acted as executor since the decree of 1869; and third, to the question what he had done with the bonds and mortgages left in his hands after that decree. The first two exceptions are without merit, and, indeed, are not relied upon or argued in the appellant’s brief. The third exception raises the only question open for consideration. The ground of objection stated was that after the defendant’s final accounting in 1869, his responsibility as executor ceased, and the funds in his hands were held by him as trustee, and what became of them was totally immaterial on a proceeding against him as executor. But this defense we have already held to be untenable. When the case was first before us, (85 N. Y., 561,) we decided that, by the will of Andrew Hood, there was an equitable conversion of the real estate into personalty, and that for the proceeds of its sales the executor was accountable in that capacity. At a later period, the order revoking his letters testamentary came up for review, (98 N. Y., 363,) and we then held, passing by the inquiry whether, under the will, it was possible for him to exchange the character of executor for that of trustee, that he had not effected such exchange, and remained executor only, and removable as such for his misconduct in that capacity. We pointed out that, on the accounting in 1869, he was not discharged, was not directed to hold the remaining assets as trustee, was not credited with such transfer, and his account thereby balanced; but the decree entered directed, as to the assets remaining, that “ the said executor shall hold and invest pursuant to the powers and directions contained in said last will and tes*504tament.” There had been no payment to the defendant as trustee, no new account opened and kept in the new capacity, and no separation or division of the fund, allotting to the beneficiaries their exact and specific proportions. If the question had respected commissions, it was shown that our own decisions would have compelled us to hold that the defendant could not be entitled to them in the character of trustee. Our decision, intermediate the two referred to, does not affect the present appeal, since the removal of the executor is a new fact which has occurred since the decree of 1869, and brings with it new rights and responsibilities.

The order and decree should be affirmed, with costs.

All concur.