In re the Probate of the Will of Haefner , 4 Misc. 2d 835 ( 1956 )

Anthony P. Savarese, S.

Decedent died on March 17, 1956, and was survived by four children, all adults. Thereafter there was found among her effects a conformed carbon copy of a testamentary instrument alleged to have been executed by her on July 26, 1938. The executor named therein seeks to probate same on the ground that the executed original thereof was lost by the attorney-draftsman. According to the terms of the submitted instrument, testatrix gave a legacy of $200 to a priest for Masses for her deceased husband and herself and the rest and residue in equal shares to her four children who have consented to the probate thereof.

Upon the hearing the attorney-draftsman testified that he prepared the will, supervised the execution thereof and acted with another, now deceased, as the attesting witnesses, and that both of them affixed their subscriptions below the signature of the testatrix and also below the attestation certificate. He further stated that the notation appearing on the copy that the original was in his possession was made by him at the time of the execution, and that the date of the instrument, the name of the testatrix and those of the attesting witnesses with their addresses were filled in by him on the copy. He further said that he moved his office from Manhattan to Queens in 1941, and that, in the process of moving, he inadvertently misfiled or lost the executed instrument and that, although he made a diligent and thorough search, he has been unable to find the same. He further stated that testatrix never requested the return of the same. His testimony satisfies the court that the original instrument after execution was never in the possession of the testatrix, and' that it was lost or mislaid while in his exclusive possession. He identified the propounded instrument as a conformed copy of the original will and this identification together with his testimony is sufficient proof of the contents as required by section 143 of the Surrogate’s Court Act. The evidence convincingly establishes that the will was duly executed, that testatrix at the time of execution Avas free from restraint and competent to make a will. The propounded instrument will be admitted to probate as a correct copy of decedent’s will and may be established in and by the decree which may also dispense with the testimony of the deceased witness. Submit decree accordingly.