135 N.E. 937 | NY | 1922
The order of the Appellate Division is not a final order, and is not reviewable in this court.
In a proceeding for the construction of a will the question to be determined was the proper division of the estate on the death of the testator's wife. The surrogate held that she was the owner of the fee. The Appellate Division held that she had a life estate only. It thereupon made an order that the decree be "reversed and the matter remitted to the surrogate for further consideration, with costs to the appellant to abide event."
The life estate having ended, the surrogate has yet to determine the parties entitled to the remainder, and their proportionate shares upon division. The order of the Appellate Division does not solve the problem for him, but leaves it open and unsettled. Whether it is a simple or a difficult one, is not the point. Its solution involves the discharge of duties which are more than ministerial.
The appeal should be dismissed with costs.
HISCOCK, Ch. J., HOGAN, CARDOZO, POUND, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.
Appeal dismissed.