| N.Y. Sur. Ct. | Dec 15, 1901
— Isaac Beiffeld died at the city of New York on the 15th day of August, 1901, being at the time of his death a resident of the city and county of Albany; on the 13th day of June, 1901, he executed at the city of Albany his last will and testament, by the terms of which he bequeathed the proceeds of two beneficiary life certificates, and appointed Morris Cop-lon as executor of the will. The testator delivered the will to one Harris Sherman, a tailor and retail merchant, residing on South Pearl street, in this city, for custody and safe keeping. Mr. Sherman deposited the will in a drawer of a desk at his store shortly after its receipt, and the same remained there until its destruction by fire on the 2d of July, 1901; on that date the store and building occupied by Mr. Sherman were totally destroyed by fire, including the desk in which this will was contained and the contents thereof; that the drawer of the desk containing the will was locked and the key in the possession of Mr. Sherman, and he testified that he saw the will on the morning of the fire. At the time of the execution of this will Mr. Beiffeld was suffering from tuberculosis and within ten days of the execution of this instrument departed for the city of New York and from there went to Denver, Colorado, and finding that the climatic conditions there existing did not benefit his health, returned to the city of New York and died within a short time after his arrival. There is no proof to indicate that Mr. Beiffeld was informed of the destruction of this will or had notice of its destruction at the time of his death. The fire was of an accidental character. Upon the hearing in this; proceeding the provisions of the will were clearly established by the subscribing witnesses to the will and Mr. McG-raw who drafted the same: This proceeding is in
Section 1865 provides as follows:
“ § 1865. Proof of lost will in certain cases. — But the plaintiff is not entitled to a judgment, establishing a lost or destroyed will, as prescribed in this article, 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.”
A will destroyed during the lifetime of a testator, in order to be admitted to probate, must be shown to have been fraudulently destroyed. “ Fraud ” is defined by the Standard Dictionary in its legal aspect as “ any artifice or deception practiced to cheat, deceive or circumvent another to his injury.” (2) “ Any act, omission or concealment that involves a breach of duty, trust or confidence and which is injurious to another or by which an undue advantage is taken of another.”
“Fraudulent” is defined objectively as “based on proceeding from or characterized by fraud.”
“ Fraudulently ” is an adverb of the same meaning and is here used to characterize the manner of destruction intended by the statute.
Here was no fraudulent destruction such as is provided for by statute, but only an accidental destruction for which no provision is made.
The title to all property, real and personal, vests primarily in the sovereign State upon the death of the owner and can only be devised or bequeathed in the manner and to the extent provided by statutes which are to be strictly construed, so that I must determine, as a matter of law, that the accidental destruc-
Probate denied.