In re the Estate of Dunham , 188 Misc. 1026 ( 1947 )

McGabby, S.

Decedent and his wife both died on May 8, 1946, from natural causes. She died at 3:00 p.m. On that day, decedent, who was last seen alive prior to 3:00 p.m., was found dead in his room in the apartment in which he and his wife lived at 3:10 p.m. The physician attending both decedent and his wife states that he arrived at the apartment at about 3:30 p.m. and found both decedent and his wife dead; that he was unable to determine which died first and there were no means by which that fact could be ascertained. Tavo other persons who were in the apartment of the decedent and Ms wife at the time of their deaths both state they are unable to say which of the decedents died first.

There is no evidence, nor is any available, to establish whether decedent survived or predeceased his wife.

The provisions of subdivision 1 of section 89 of the Decedent Estate Law are applicable to the disposition of the estate of this decedent and the estate shall be distributed as if he had survived his wife.

Proceed accordingly.