Opinion
April 22, 1947.
Pierre J. Sherry and Louis J. Russo for Mary Kapp, petitioner.
The decedent herein died in a Japanese prisoner of war camp on the island of Amboina on January 18, 1945, leaving him surviving as his only distributees his mother, the proponent, and his father.
The proponent seeks to establish a nuncupative oral will made by decedent while in the military service of the United States as a soldier in the army. In support of the allegations of her petition proponent produced two friends of the decedent, both of whom were also members of the United States Army and prisoners of war with decedent on the island of Amboina. One testified that he and the decedent escaped from the Philippine Islands before they were seized by the Japanese and met the other witness in the jungles and that they were later captured on the island of Mindanao in September, 1942 and transferred to the prison camp at Amboina, being liberated after the surrender by Japan.
Both of the witnesses testified that with decedent they often discussed their families and homes and that a month or two before his death decedent told them, on separate occasions, that if anything happened to him "he wanted his mother to get everything he had; nothing to go to his father," and "he wanted everything to go to his mother; nothing to go to his father". The father has waived citation and consented to probate.
The decedent at the time of the statements of his wishes concerning the disposition of his property in the event of his death was in the military service on active duty within the meaning and intent of section 16 of the Decedent Estate Law, and the making and the execution of the will and the tenor thereof have been established or proven in accordance with the provisions of that section. ( Matter of Mason, 121 Misc. 142; Matter of Dumont, 170 Misc. 100, affd. 257 A.D. 952, affd. 282 N.Y. 606; Matter of McDonald, 179 Misc. 284; Matter of Zaiac, 279 N.Y. 545.)
The court is satisfied with and accepts as true the statements of the witnesses as to the testamentary declarations of the decedent and such declarations will be admitted to probate as the last will and testament of decedent.
Submit decree accordingly including therein a statement of the provisions of the will.