Opinion
January 29, 1937.
Appeal from Surrogate's Court of New York County.
John L. Class, for the appellant.
Saul Grover Wlodaver of counsel [ Samuel Mezansky with him on the brief], for the respondent.
Present — MARTIN, P.J., McAVOY, O'MALLEY, GLENNON and UNTERMYER, JJ.
The evidence justified the surrogate in finding the existence of a contract whereby the respondent is entitled to the net estate. However, the surrogate having failed to determine other issues raised by the objections filed to the account, the decree must be reversed and the proceeding remitted to the Surrogate's Court with directions to hear and determine the undecided issues and thereupon to include in the decree provisions directing payment of the balance remaining in the hands of the accounting administratrix to the administrator de bonis non of decedent and denying to the administratrix costs and commissions.
Decree unanimously reversed and proceeding remitted to the Surrogate's Court for further action in accordance with the opinion.