In re the Estate of Schafer

278 A.D. 608, 101 N.Y.S.2d 862, 1951 N.Y. App. Div. LEXIS 4090

Opinion

Appeal by petitioner-appellant from an order of the Surrogate’s Court of Saratoga County which dismissed her petition to revoke the letters of administration issued to respondent in the estate of George Schafer, deceased. Respondent is the widow of the decedent, but she had lived separate and apart from decedent for nearly thirty years prior to his death. The application to revoke letters of administration issued to her was based upon thb theory that she had abandoned him (Decedent Estate Law, § 87; Surrogate’s Ct. Act, § 118). The Surrogate’s Court held that, respondent was not disqualified to serve as administratrix by reason of abandonment or for any other cause. We think this decision was correct. The proof taken was not sufficient to sustain a finding of abandonment. More than the mere fact of separation must be shown, and the burden of proof is on the party who asserts the abandonment (Williams v. Williams, 130 N. Y. 193; Matter of Maiden, 284 N. Y. 429). Order unanimously affirmed, without costs. Present — Foster, P. J., Heffernan, Deyo, Bergan and Coon, JJ.