269 A.D. 837 | N.Y. App. Div. | 1945
The proponent herein has offered for probate a copy of a will, the execution of the original of which, on May 1, 1937, is admitted. The contestant claims an intestacy by reason of the revocation of the will. The question was presented by contestant’s claim that in 1939, in her presence and in the presence of the witness Kelekian, the testator had destroyed the original will with the intention of revoking it. It was established by a preponderance of proof that after its execution the will was placed in a safe deposit box in the Manufacturers Trust Company, subject to the joint control of the deceased and the contestant. It was further established that this will remained in this safe deposit box up to at least the early part of January, 1944. The deceased died on February 1, 1944. It is admitted that, for several months prior to his death, deceased was bedridden and that the only person who had access to the safe deposit box where the will had been placed was the contestant.
The testimony of the witness Kelekian as to the destruction of the original of the will offered here was not only highly improbable in itself but wholly inconsistent with, and in direct conflict with, the conduct of contestant in the period preceding and immediately following the death of the testator.
The decree so far as appealed from should be reversed, with costs to the appellant and to the special guardian, and the will admitted to probate, and the proceeding remitted to the Surrogate of the County of New York for further action in accordance with this opinion.
Martin, P. J., Townley, Glennon, Cohn and Callahan, JJ., concur.
Decree, so far as appealed from, unanimously reversed, with costs to the appellant and to the special guardian, and the will admitted to probate, and the proceeding remitted to the Surrogate of the County of New York for further action in accordance with opinion. Settle order on notice.
