In re the Probate of the Will of Levinsohn

Maximilian Moss, S. This is a proceeding to establish a lost will pursuant to section 143 of the Surrogate’s Court Act. The testimony of the two subscribing witnesses establishes that decedent executed a will on or about February 27, 1948, in full compliance with the provisions of section 21 of the Decedent Estate Law and that at that time he was of sound mind and under no restraint. The attorney draftsman, who was also one of the subscribing witnesses, testified that the will was turned over to decedent’s son for safekeeping immediately upon its execution. He further testified that he made an exact carbon copy of the original will which he conformed and kept in his files. The said carbon counterpart has been offered for probate by petitioner as decedent’s will. Decedent’s son testified that he kept the original will for safekeeping at all times since its execution in his home. He further testified that decedent never had access to the will and never came to him for it. During the period that decedent’s son had the will for safekeeping he moved his place of residence twice. After decedent’s death he made a search for the will among the records and files in his home and place of business but found no trace of it. He further testified that his search revealed that in addition to decedent’s will other papers including his own will were lost. The evidence establishes that the decedent never had possession of the will after its execution and delivery to his son for safekeeping. The facts in the record further establish that the will was either in existence at the time of his death or that it was accidentally lost or destroyed in his lifetime without his knowledge or consent. Under such circumstances the law deems the will to have been constructively fraudulently destroyed as to decedent and the legal result is the same as if the will were in [607] existence at the time of his death (Surrogate’s Ct. Act, § 143; Schultz v. Schultz, 35 N. Y. 653; Matter of Bly, 281 App. Div. 769; Matter of Pinney, 72 N. Y. S. 2d 895). The conformed carbon imprint filed by petitioner will be admitted to probate as decedent’s will. The decree will incorporate the provisions of said instrument. Submit decree.