Opinion
November 2, 1955.
Present — McCurn, P.J., Vaughan, Kimball, Wheeler and Van Duser, JJ.
Decree reversed on the law and facts, without costs of this appeal to any party, and matter remitted to the Surrogate's Court for further proceedings not inconsistent with the memorandum. Memorandum: The decree appealed from denies appellant's petition for a compulsory accounting by the trustee. The decree sets forth findings which, if sustained, appear sufficient to support the Surrogate's denial of the petition. While ordinarily issues relating to the trustee's handling of the trust property are not tried in a proceeding for a compulsory accounting, still the Surrogate may take evidence as a preliminary proposition to determine the petitioner's right to have an account filed. The difficulty here is that this record contains no evidence by affidavit or otherwise, to support the findings set forth in the decree. Respondent's brief indicates that certain facts were developed upon the oral argument and in briefs filed by the parties, but as such facts do not appear in the record we are unable to review them. All concur. (Appeal from a decree of Niagara Surrogate's Court, denying the petition to compel Gertrude Barnett Lingham to account as trustee.)