In re the Estate of Schafer

Appellate Division of the Supreme Court of New York

In re the Estate of Schafer

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

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 10, 1951

StatusPublished

Cited by2 cases

This text of 278 A.D. 608 (In re the Estate of Schafer) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re the Estate of Schafer, 278 A.D. 608, 101 N.Y.S.2d 862, 1951 N.Y. App. Div. LEXIS 4090 (N.Y. Ct. App. 1951).

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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.

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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.

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Bluebook (online)

278 A.D. 608, 101 N.Y.S.2d 862, 1951 N.Y. App. Div. LEXIS 4090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-schafer-nyappdiv-1951.

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