In re the Probate of the Will of McGuigan , 171 N.Y.S.2d 151 ( 1957 )

George A. Brenner, S.

Following the issuance of letters of administration in the estate of the above-named decedent, there was filed in this office an instrument purporting to be the will of decedent, and which on its face appeared to be a carbon copy of a will bearing the signature of the decedent and the signatures of two subscribing witnesses.

The evidence adduced at the hearing established that the instrument propounded as the will of decedent was executed in duplicate; that the ribbon copy and one carbon copy were executed in the manner prescribed by section 21 of the Decedent Estate Law, and that at the time of execution the decedent was competent to make a will and was free from restraint.

The evidence established that the will was drafted and its execution supervised by an attorney who also acted as a subscribing witness. Both subscribing witnesses testified that one of the duplicate originals, the ribbon copy, was delivered to the decedent immediately following its execution and the other duplicate original, the carbon copy, was placed in an envelope and deposited in the office safe of such attorney, A search by the proponent for the duplicate original delivered to the decedent has failed to disclose its existence.

The proceeding for the probate of the alleged will is denied and the petition is dismissed. The proponent’s failure to explain the inability to produce both or all copies of a will executed in multiplícate one of which was shown to have been in the possession of decedent raises the presumption that the will was revoked by the decedent. (Surrogate’s Ct. Act, § 143; Matter of Kennedy, 167 N. Y. 163, 168; Matter of Robinson, 257 App. Div. 405.)

Submit decree denying probate to the instrument propounded as the will of decedent and dismissing the probate petition.