In re Proving the Last Will & Testament of Shields

117 Misc. 96

• Court: New York Surrogate's Court
• Decided: November 15, 1921
• Status: Published

Opinion

Cohalan, S.

A novel situation is herein presented. The testator executed in his lawyer’s office a typewritten will in duplicate. The lawyer kept one of the duplicates. The testator took the other and placed it in his safe deposit box. It remained under his control until his death, was then found in his safe deposit box and is now produced.

Some few days after the execution of the will the testator, according to the testimony, called at his lawyer’s office, asked for and received the other duplicate. He carried it away to place it in his safe deposit box. It was never seen again and cannot now be found.

Shall probate be granted? I am of that opinion. I find no case in this state directly in point. Matter of Schofield, 72 Misc. Rep. 281, presents a radically different situation; there only one of the duplicates was in the possession of the testator and that could not be found; here both were in the possession of the testator and one kept with the utmost care throughout the years is found.

In these cases there is of course a presumption: favorable to revocation, but it is only a presumption, as is well pointed out in Managle v. Parker, 75 N. H. 139, a case in which the duplicate in the testatrix’s possession was destroyed by her and yet probate was granted.

The situation now presented is vastly more favorable to probate. The duplicate now missing may have been destroyed but equally it may have been lost. Certainly the presumption that it was destroyed animo revocandi is of the weakest and is, I hold, in view of the care with which the other duplicate was guarded by the testator, insufficient to predicate thereupon denial of probate.

The propounded paper is therefore admitted.

Decreed accordingly.