In the Matter of the Judicial Settlement of the Account of Proceedings of Wally Koch Schermer, as Administratrix, etc., of John Schermer, Deceased. Martin Schermer, Individually, Both as Claimant and as Distributee, and as Attorney in Fact for Josef Schermer and Rosina Obermeier, Distributees, and as Administrator de Bonis Non of John Schermer, Deceased, Appellant; Wally Koch Schermer, Respondent

In the Matter of the Judicial Settlement of the Account of Proceedings of Wally Koch Schermer, as Administratrix, etc., of John Schermer, Deceased. Martin Schermer, Individually, Both as Claimant and as Distributee, and as Attorney in Fact for Josef Schermer and Rosina Obermeier, Distributees, and as Administrator de Bonis Non of John Schermer, Deceased, Appellant; Wally Koch Schermer, Respondent. First Department, January 29, 1937. John L. Class, for the appellant. Saul Grover Wlodaver of counsel [Samuel Mezansky with him on the brief], for* the respondent. [MAJORITY — Per Curiam.] Per Curiam. The evidence justified the surrogate in finding the existence of a contract whereby the respondent is entitled to the net estate. However, the surrogate having failed to determine other issues raised by the objections filed to the account, the decree must be reversed and the proceeding remitted to the Surrogate’s Court with directions to hear and determine the undecided issues and thereupon to include in the decree provisions directing payment of the balance remaining in the hands of the accounting administratrix to the administrator de bonis non of decedent and denying to the administratrix costs and commissions. Present — Martin, P. J., McAvoy, O’Malley, Glennon and TJntermyer, JJ. Decree unanimously reversed and proceeding remitted to the Surrogate’s Court for further action in accordance with the opinion.