(dissenting.) I cannot concur in the conclusion arrived at by Mr. Justice Daniels in this case. The refusal to find the evidence called! “ conclusion of facts” was not error. Most of the requests were to find evidence, and such as did not call for the finding of evidence do not appear to have been material. Neither a court nor referee is bound to find the evidence leading up to a conclusion of fact. It is the conclusion which he may be required to-find, not the evidence establishing it. The exceptions to the exclusion of evidence by the referee cannot be considered, because it does not appear that these questions have been presented to the surrogate in a manner calling upon him to pass upon the same. There was no exception filed upon the ground-that the referee refused to hear testimony which was material, and consequently no such question was before the surrogate; and, if this is so, it cannot be considered here. Boughton v. Flint, 74 N. Y. 484. The decree-should be affirmed, with costs.