In re the Probate of the Last Will & Testament of Millens , 36 N.Y.S.2d 27 ( 1942 )

Appeal by the petitioners in the above-entitled proceeding from an order and decree of the Surrogate’s Court of Ulster County denying the probate of ah alleged lost or destroyed will and dismissing the petition, with costs to the respondents. The petition was under section 143 of the Surrogate’s Court Act. The surrogate determined that said deceased did make and execute in her life a paper or writing in conformity with the statutes of the State of New York as and for her last will and testament which was dated in the month of November or December, 1939, and that said paper was in the possession of the said deceased prior to her death, but could not be found after her death. The proof of the existence of the alleged will subsequent to the death of the deceased falls short of being clear and convincing. The proponents failed to overcome the presumption that the testatrix destroyed the will during her lifetime for the purpose of revoking it. Order and decree of the surrogate affirmed, with costs to defendants payable out of the estate. Crapser, Bliss, Heffernan and Schenek, JJ., concur; Hill, P. J., dissents.