144 N.Y.S. 94 | N.Y. App. Div. | 1913
This .is an appeal from a decree of the surrogate of Madison county, entered in his office December 23,1912, adjudging that a will of Grilláis A. Hudson, who died in October, 1912, aged about sixty years, was not entitled to probate.
The sole beneficiary of the will as well as the sole executor thereof was the proponent, Albert Smith Sheldon, with whom the testator had been intimately associated. The respondents were Williean S. Hudson, the son and only heir at law of the testator; De Etta Hudson Clark, as temporary administratrix of the estate of the testator, and Fidelia B. Rutherford, an alleged beneficiary under a former will of the testator, who, pursuant to an order granted upon her application, was allowed to intervene and make herself a party to the proceeding and interpose her defense. Williean S. Hudson filed an answer denying all the material allegations of the petition. Fidelia B. Rutherford filed no answer, but made application to the surrogate at the time of the settlement of the case to be permitted to file an answer nunc pro tunc as of the time of the granting of the order of intervention, which application was denied.
The two questions involved in the appeal are whether the evidence was sufficient to establish the will and that it was in existence at the time of the testator’s death or had been fraudulently destroyed in his lifetime. Section 2621 of the Code of Civil Procedure provides that a lost or destroyed will can be admitted to probate in a Surrogate’s Court only where a judgment estabhshing the will could be rendered by the Supreme Court as prescribed in section 1865 of the Code of Civil Procedure, which provides that plaintiff is not entitled to judgment establishing a lost or destroyed will unless the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.
The evidence was sufficient to sustain the finding of the surrogate that the testator executed the alleged will, but the more serious question is whether the evidence was sufficient to establish the existence of the will at the time of the testator’s death, or that it had been fraudulently destroyed in his lifetime. One witness, who at one time had tended bar for testator, testified to having seen the will in 1907, and he is the only witness who testified to having seen it during the eight years which expired between the time of its execution and the death of testator. Several witnesses testified to declarations of testator made in the years 1905, 1908, 1909, 1911, and as late as September, . 1912, to the effect that the testator was displeased with his son,
Concededly testator’s son, who alone would profit by intes
The surrogate, having seen and heard the witnesses, was favorably situated to judge of the weight which should be given to the testimony of each.
The burden of proof to establish the existence of the will at the time of testator’s death or that it had been fraudulently destroyed in his lifetime was upon proponent, and we think that the findings of the surrogate were justified by the evidence.
“ Proof that a will executed by a deceased person was said by him, a month previous to his death, to be in his possession in a certain desk at his house; that he was then very aged and feeble; that his housekeeper was a daughter having an interest adverse to the will, and that the same could not be found on proper search three days after his death is not sufficient evidence of its existence at the testator’s death or of a fraudulent destruction in his lifetime to authorize parol proof of the contents.” (Knapp v. Knapp, 10 N. Y. 276.)
“ The presumption of law is that a will proved to have had existence and not found at the death of-testator, was destroyed animo revocandi.” (Id. p. 278; Eighmy v. People, 79 N. Y. 546, 559.)
“ There is no direct proof that Mrs. Collyer destroyed her will. But the proof that the will was not found after her death is sufficient proof that she destroyed it animo revocandi. When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator, and this presumption stands in the place of positive proof. (Betts v. Jackson, 6 Wend. 173; Knapp v. Knapp, 10 N. Y. 276; Schultz v. Schultz, 35 id. 653; Hatch v. Sigman, 1 Demarest, 519.) He who seeks to establish a lost or destroyed will assumes the burden of overcoming this presumption by adequate proof. It is not sufficient for him to show that persons interested to establish intestacy had an opportunity to destroy the will. He must go further and show, by facts and circumstances, that the will
“No presumption as to the continued existence of a will and codicil arises from the proof of their execution, so as to establish the existence thereof at the time of the testatrix’s death, which is essential under the statute to permit the admission to probate of a lost or destroyed will in a Surrogate’s Court; but failure to find such will and codicil after careful and exhaustive search, raises a presumption that the decedent herself destroyed them animo revocandi.” (Matter of Kennedy, 167 N. Y. 163.)
The appellant Rutherford contends that the evidence fails to establish the existence of a clause of revocation in the will, but this is immaterial as the will having disposed of all testator’s property was inconsistent with the alleged former will, in favor of Mrs. Rutherford, and hence the latter will must be deemed to have evidenced the intention of the testator to revoke the former will. (Clark v. Kingley, 37 Hun, 246; Matter of Pilsbury’s Will, 99 N. Y. Supp. 62; affd., 186 N. Y. 545; 40 Cyc. 1175.)
There are no exceptions calling for the reversal, or for a modification of the decree of the surrogate. While the appellant Rutherford has devoted considerable space in her brief to the exception taken by her to the refusal of the surrogate to allow her upon the settlement of the case to file an answer nunc pro tunc as of the date of the order allowing her to intervene, it is to be observed that the matter was at most discretionary with the surrogate and that pleadings in Surrogate’s Court may be oral, excepting when required by the surrogate to be in writing. (Code Civ. Proc. § 2533.) No such requirement was made by the surrogate. The petition for leave to intervene fully stated her position, and she was allowed to appear and defend and her rights have been in no way prejudiced either upon the trial or upon this appeal, by such refusal of the surrogate.
The appellant Sheldon complains of the ruling of the surrogate sustaining the objection of contestant Hudson to his testifying in effect that the copy of the will annexed to the petition. was a copy of the original will executed by the. testator, upon
The decree of the surrogate must be affirmed, with costs to respondents.
Decree unanimously affirmed, with costs.