In re the Probate of the Will of Cucci

McGarey, S. The court is satisfied on the testimony of the subscribing witnesses that the decedent executed the instrument offered for probate, in duplicate, in accordance with section 21 of Decedent Estate Law and that at its execution he was of sound mind and fully competent to make a will and under no. restraint. The instrument produced is a carbon imprint. The ribbon counterpart has not been produced. However, the attorney-draftsman, who is also one of the subscribing witnesses, has testified that the carbon counterpart produced was delivered to the decedent and that the ribbon counterpart was retained by him and filed in his office; that at the request of the petitioner, he made a thorough and diligent search for the ribbon counterpart of the instrument and was not able to find it, and he believes it was lost. He also testified that the ribbon counterpart was never in the possession of the decedent. In such circumstances the presumption arising from the non-production of a counterpart that the decedent destroyed the will with intent to revoke it has been satisfactorily overcome and the instrument filed is entitled to be admitted to probate. Proceed accordingly.