This is a proceeding brought before the Surrogate’s Court, Kings County, to prove the last will and testament of AEF – to establish a lost will pursuant to the provisions of Section 143, Surrogate’s Court Act.
On 11 February 1958, the decedent AEF died.
According to the subscribing witnesses of the will, on 4 February 1958, the decedent duly executed a will in accordance with the provisions of Section 21, Decedent Estate Law, and that, at the time of execution, he was fully competent to execute a will and was under no restraint.
The Court was satisfied of the subscribing witnesses’ testimony.
While no copy of the will was produced, the testimony of the subscribing witnesses satisfactorily established its contents as follows: that the will was on a printed form folded at the top to make four pages; that the testamentary dispositions and the nomination of the executrix and alternate executor were typed on the first page, the second or reverse side of the first page was blank and on the third page was the testimonium clause followed by the signature of the decedent; that there was an attestation clause after the decedent’s signature below which the subscribing witnesses had placed their signatures and addresses; that by the will, the decedent directed payment of his debts and gave the rest of his property and possessions to DM; that, if she did not survive him, the decedent left all his property to GM and VM, son and daughter of said DM; that the will nominated DM as executrix and, in the event of her death, GM was to serve as executor, and the decedent directed that neither of them should be required to file a bond; and that there was a further provision in the will in the nature of a request that a fence be erected around or on the side of the property wherein DM then resided.
According to the witness, JPM, she was at the home of DM on the day before the decedent’s funeral and DM showed her a bundle of papers which were all of the decedent’s personal papers ‘and everything,’ that among the papers was the instrument she identified as the will which the decedent had signed and to which she and GW had acted as witnesses, and that she he recognized decedent’s signature thereon, her own signature and that of the other subscribing witnesses.
Brooklyn Probate Lawyers said both witnesses testified that they never acted as witnesses to a will before.
According to the son and daughter of DM, in his testimony, they had seen the will at their mother’s home after the decedent’s death and, that, thereafter they were unable to find it after they – them and their mother -made serious efforts to search,.
According to the court, the will was in existence at the time of decedent’s death. However, it was lost thereafter but its provisions have been clearly and distinctly proven by two credible witnesses who were the subscribing witnesses.
The objections filed by the decedent’s brother were dismissed and the will was admitted to probate. The decree was ordered settled on notice incorporating the provisions of the will as herein stated.
On 1 February 1960, in a supplemental opinion – supplementing the decision of the Court – the court held that the testimony further established that the decedent’s will contained a statement that he was leaving nothing to his relatives in Norway because he had not seen them in forty years and did not know whether they were living or dead. As part of decedent’s will as probated, the decree should incorporate the statement.
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