In re Condon to Prove a Certain Lost Instrument as the Last Will & Testament of Condon

New York Surrogate's Court

In re Condon to Prove a Certain Lost Instrument as the Last Will & Testament of Condon

124 Misc. 845, 208 N.Y.S. 797, 1925 N.Y. Misc. LEXIS 717

CourtNew York Surrogate's Court

DecidedMarch 19, 1925

StatusPublished

Cited by5 cases

This text of 124 Misc. 845 (In re Condon to Prove a Certain Lost Instrument as the Last Will & Testament of Condon) is published on Counsel Stack Legal Research, covering New York Surrogate's Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Condon to Prove a Certain Lost Instrument as the Last Will & Testament of Condon, 124 Misc. 845, 208 N.Y.S. 797, 1925 N.Y. Misc. LEXIS 717 (N.Y. Super. Ct. 1925).

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Opinion

Wingate, S.:

Section 143 of the Surrogate’s Court Act permits the probate of a lost or destroyed will “ only in case the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime * *

Failure to find a will after careful and exhaustive search raises a presumption that the decedent destroyed it with the intention of revolting it. (Knapp v. Knapp, 10 N. Y. 276; Collyer v. Collyer, 110 id. 481; Matter of Kennedy, 167 id. 163; Matter of Cunnion, 201 id. 123; Matter of Sheldon, 158 App. Div. 843; Matter of Ascheim, 75 Misc. 434.) This presumption would be rebutted by proof that upon the execution of the will it was deposited by the testator with a custodian, and that the testator did not thereafter have it in his possession or have access to it. (Schultz v. Schultz, 35 N. Y. 653.)

It is urged that the proofs submitted upon the hearing, consisting partly of declarations of the testator, show that the will was left with the attorney who drew it, and that it was lost by the latter in the decedent’s lifetime, such loss being equivalent to a fraudulent destruction as to the testator within the meaning of the statute. (Schultz v. Schultz, supra.)

[846]*846No objection was made on the trial to the evidence of declarations of the testator, and no exception was taken to its admission. These declarations being evidence in the case, must be considered and given the weight to which they are entitled. (Voorhis v. Voorhis, 50 Barb. 119, 125; affd., 39 N. Y. 463, see p. 466.) They outweigh the lack of recollection of the attorney, and it is found that the original will was left with the attorney after it was executed, was not thereafter in testator’s possession, and he did not have access to it.

The will is admitted to probate.

Let a decision and decree be settled accordingly.

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Wingate, S.:

Section 143 of the Surrogate’s Court Act permits the probate of a lost or destroyed will “ only in case the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime * *

Failure to find a will after careful and exhaustive search raises a presumption that the decedent destroyed it with the intention of revolting it. (Knapp v. Knapp, 10 N. Y. 276; Collyer v. Collyer, 110 id. 481; Matter of Kennedy, 167 id. 163; Matter of Cunnion, 201 id. 123; Matter of Sheldon, 158 App. Div. 843; Matter of Ascheim, 75 Misc. 434.) This presumption would be rebutted by proof that upon the execution of the will it was deposited by the testator with a custodian, and that the testator did not thereafter have it in his possession or have access to it. (Schultz v. Schultz, 35 N. Y. 653.)

It is urged that the proofs submitted upon the hearing, consisting partly of declarations of the testator, show that the will was left with the attorney who drew it, and that it was lost by the latter in the decedent’s lifetime, such loss being equivalent to a fraudulent destruction as to the testator within the meaning of the statute. (Schultz v. Schultz, supra.)

[846]*846No objection was made on the trial to the evidence of declarations of the testator, and no exception was taken to its admission. These declarations being evidence in the case, must be considered and given the weight to which they are entitled. (Voorhis v. Voorhis, 50 Barb. 119, 125; affd., 39 N. Y. 463, see p. 466.) They outweigh the lack of recollection of the attorney, and it is found that the original will was left with the attorney after it was executed, was not thereafter in testator’s possession, and he did not have access to it.

The will is admitted to probate.

Let a decision and decree be settled accordingly.

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124 Misc. 845, 208 N.Y.S. 797, 1925 N.Y. Misc. LEXIS 717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-condon-to-prove-a-certain-lost-instrument-as-the-last-will-nysurct-1925.

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