1 cannot concur in the prevailing opinion. This proceeding was commenced by petition as is usual in Surrogates’ Courts and the parties all appeared. The present trustee, the savings bank, appeared by attorney, as did the incompetent beneficiary and her committee. No motion was made to dismiss the proceeding. Whether any proof was given or any stipulation was made reciting the facts does not appear. The record comes to us containing the petition, the order and the decision of the surrogate. Appeals in *19that form are quite frequent and we always assume that the facts set forth in the decision are correct. There was no appeal on behalf of the incompetent person or her committee, but the appeal was taken solely by the present trustee of the fund, that is, the bank. No suggestion is made by the appellant’s counsel that the facts contained in the decision are incorrect or that adequate proof was not given as a basis for them. What is denominated an opinion in the prevailing opinion is stated by the surrogate himself to be a decision and it is so designated in the order based upon it. It directs at the end what shall be done in the case, following the usual direction of a decision of the Surrogate’s Court, and it is signed by the surrogate. It states among the facts that these two nieces, for whom this fund was provided, were of age at the time of the death of the testatrix, which occurred twenty years ago. It also states that the surviving niece is now in an asylum and that her property is nearly exhausted. Every fact which is essential to a proper determination of this motion is noted in the decision of the surrogate. With this situation, I think, we are stretching our power very much in stating that there are no facts to warrant the conclusion which the surrogate has arrived at on the assumption there was no decision and especially when very skillful counsel has not suggested any such point.
In 1885 there had been a judicial settlement of the account of the executors of this estate and the present fund was then set apart. All the facts necessary to a determination of this question were probably developed in the proceedings in the judicial settlement and were among the records in the Surrogate’s Court and may have been referred to by assent of the parties to sustain the facts which he finds. In any event the case comes to us with this decision uncriticized in its statement of facts and we should accept it as containing the true statement.
I think the order of the surrogate should be affirmed, with costs against the appellant, the bank, personally.
Williams, J., concurred.
Decree reversed and rehearing ordered before the surrogate, with costs to the appellant to abide event.