In re Dusenbery

The petitioners appear to have established all the facts necessary to entitle them to a decree for the sale of the decedent’s real property for the payment of her debts, provided their claim and the other claims against the estate represented debts of Teresa Cody individually. The learned surrogate, however, dismissed the proceedings because all the claims were against a firm by the name of T. & L. Cody. In her will the decedent empowered her executors to continue the business “ which I have heretofore carried on with my said sister Lilian L. Cody, under the firm name of ‘ T. & L. Cody.’ ” This sister testified in the proceeding to the effect that she was not a member of the firm of T. & L. Cody, and was never in business with her deceased sister, and that her deceased sister was doing business before her death under the firm name of T. &L. Cody. We *236gather from the opinion of the learned surrogate that while lie-regarded this testimony as sufficient to negative any conclusion that Lilian L. Cody was a member of the firm, he did not deem it enough to. establish that the decedent was the sole owner doing business-under a copartnership name. “ The petitioner,” he said, “ should, conclusively establish that the credit given the firm of T. & L. Cody was in fact only given to Teresa Cody, and that she was the sole owner of the business.”

We should have béen inclined to think that the testimony of Lilian L. Cody of itself, being uncontradicted, would justify, a finding that the decedent did business individually under the firm name. Assuming, however, that something more was required, the' record shows that additional evidence on this subject was. offered, but excluded by the learned surrogate. Thus a witness called on behalf .of the petitioner who testified that he did business with the firm of T. & L. Cody was not allowed to answer a question as to. what persons constituted that firm, or as to whether the firm was composed of more than one member .of the Cody family, or whether Teresa Cody in her lifetime'was a member of such a firm. These questions were- objected to as incompetent and immaterial, but no objection was made to their form. They were plainly designed to elicit próof to the effect that the Business was the individual business of the decedent, and it appears quite clear. that such proof should have been received in the view of the case expressed by the learned surrogate himself in his opinion. As it seems very likely that evidence of this character might change the result, we think the decree should be reversed and the proceeding remitted to the Surrogate’s Court for a further hearing.

Decree reversed and proceeding remitted to the Surrogate’s Court of Kings county for a further hearing in accordance with opinion per curiam ; costs of this appeal to abide the result in that- court.

Hirschberg, P. J., Bartlett, Woodward and Jektks, JJ., concurred ; Hooker, J., not voting.

Decree of the Surrogate’s Court of Kings county reversed and proceeding remitted to said court for further hearing in accordance with opinion per curiam;- costs of this appeal to abide the result in. that court.