Opinion
January 10, 1951.
Appeal from Surrogate's Court of Saratoga County.
Present — Foster, P.J., Heffernan, Deyo, Bergan and Coon, JJ.
Respondent is the widow of the decedent, but she had lived separate and apart from decedent for nearly thirty years prior to his death. The application to revoke letters of administration issued to her was based upon the theory that she had abandoned him (Decedent Estate Law, § 87; Surrogate's Ct. Act, § 118). The Surrogate's Court held that respondent was not disqualified to serve as administratrix by reason of abandonment or for any other cause. We think this decision was correct. The proof taken was not sufficient to sustain a finding of abandonment. More than the mere fact of separation must be shown, and the burden of proof is on the party who asserts the abandonment ( Williams v. Williams, 130 N.Y. 193; Matter of Maiden, 284 N.Y. 429). Order unanimously affirmed, without costs.