In re the Estate of Bacon

Decree reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: In view of our disposition of this matter as hereinafter stated, we deem it not necessary at this time to pass on the admissibility of the documents received by the court below on the theory that they afforded presumptive evidence of the fact of adoption by reason of the provisions of section 389-a of the Civil Practice Act and for the same reason we do not now pass on the question as to whether the recital of the words in such documents “ my adopted daughter, Mary A. Bacon ” is surplusage unnecessary to the disposition and administration of the property of the declarants. (Matter of Draske, 160 Misc. 587.) There is no proof in the record that in any way substantiates or corroborates the declarations contained in the documents above mentioned (Fulkerson v. Holmes, 117 U. S. 389, 397; Smith v. Allen, 32 App. Div. 374; affd., 161 N. Y. 478) and for that reason alone, it is necessary to reverse the order, determination and decree of the surrogate on the law and on the facts and to order a new trial of this matter. All concur. (The decree determines certain persons to have been adopted children, in a proceeding to determine distributees of an estate.) Present — Crosby, P. J., Taylor, Dowling, Harris and MeCum, JJ.