164 Misc. 440 | N.Y. Sur. Ct. | 1937
The decedent’s widow has petitioned for letters of administration, and has also filed a paper purporting to be the decedent’s last will in which she is named as executrix. She alleges
Letters of administration may not be granted where there is a will (Suit. Ct. Act, § 119, subd. 1). The statute refers to a valid will. The existence, or the filing in the Surrogate’s Court, of a paper purporting to be a will does not import validity to the paper. It becomes a valid will only after it has been duly admitted to probate. (Surr. Ct. Act, § 314, subd. 1; Matter of Billet, 187 App. Div. 309, 311; Matter of Cameron, 47 id. 120, 123; affd., 166 N. Y. 610; Matter of Dressel, 102 Misc. 648; Matter of Carter, 74 id. 1.) The presumption in favor of intestacy continues until overcome by evidence. (Matter of Cameron, supra.) In the absence of any evidence of testacy, the application for administration must be granted.
Settle decree awarding letters of administration to the petitioner upon her filing a bond in the sum of $1,000 and otherwise qualifying as prescribed by statute.