Kauffman vs. Copous' Executors, 16 Wend. 478

By the Chancellor. The judgment which we are called upon to review by this writ of error, was rendered upon the report of referees upon a submission by the parties, under the thirty-sixth

section of the

article of the revised statutes relative to the duties of executors and administrators in the payment of debts and legacies. 2 R.S. 88. Though in form a reference as upon a claim made by Kauffman against the estate of the decedent, it was, in fact, a proceeding to have the accounts between him and the estate settled in a

summary and expeditious way, without the employment of counsel or the expense of a protracted law suit. The statute under which these proceedings were instituted directs that they shall be conducted in all respects as if the reference had been made in an action in which the court might by law direct a reference, and that judgment may be entered upon the report of the referees, in the same manner as in ordinary suits.

There is no doubt, therefore, as to the power of the supreme court to set aside the report of the referees either for irregularity, or for a mistake in point of law, or because it is against the weight of evidence. But this court is authorized to reverse the decision of the SUpretne court only for some error in point of law, arising from the facts placed upon the record of the court below f°rm °f a special or supplemental report of the referees in the nature of a bill of exceptions or special verdict.

The revised statutes evidently contemplate a report of the referees upon the matters of fact, in reference to questions of law which may have arisen out of those facts, or as to. the admission or rejection of evidence, as the only proper mode of placing such questions of law upon the record for the purpose of having the decision of the court below reviewed upon a writ of error. The forty-seventh

section of the

article of the revised statutes relative to consolidating and referring causes, 2 R. S. 384, authorizes the court in which the reference is pending to require the referees to report their decision in admitting or rejecting any witness, in allowing or overruling any question to a witness or the answer thereto, and all other proceedings by them, together with the testimony before them, and their reasons for allowing or disallowing any claim of either party.

The object of this provision was to have authentic evidence upon the record as to the several questions, intended to be discussed upon a writ of error; and the revisors, in their note to this section, repudiate the idea of placing upon the record the ex parte and conflicting affidavits of the parties or their counsel as the proper evidence upon which to settle the law.

When the supreme court, therefore, gave permission to the plaintiff, Kauffman,. to have a statement of the facts drawn up and incorporated in the record for the purpose of enabling him to bring a writ of error thereon, he should have had the facts prepared in the form of a special report from the referees, embracing the facts sworn to by the referees, and by the attorney of the executors, and such facts stated in the affidavit of Kauffman as were not contradicted by "the referees—rejecting all that part which relates to transactions previous to the reference, as improper; or what would have been the more correct course, his counsel should have asked the court to direct the referees to make a special report as to all the matters stated in the affidavits, so far as was necessary to raise the questions of law which were properly to be discussed upon a writ of error.

It was altogether irregular for the attorney for the adverse party to consent to place this incongruous and con-fussed mass of matter upon the record, as a compliance with the order of the supreme court, and if there was any real question as to the merits of the case, or any doubt as to the correctness of the decision of the referees in point of law, I should be disposed to dismiss this writ of error without costs to either party, and give to the plaintiff in error permission to apply to the supreme court to direct the referees to make a special report of the facts out of which the questions of law arise, to be incorporated into the record.

As however, the case is perfectly free of doubt, in my mind, both as to law and fact, we shall probably save much trouble, and prevent expense to the parties if we dispose of the case upon its merits, so far as we can understand it from the papers before us. [The Chancellor, after considering the several questions presented in argument, concluded by expressing the opinion that the judgment of the supreme court ought to be affirmed; and it was accordingly affirmed.]