Opinion
July 11, 1951.
Present — Taylor, P.J., Vaughan, Kimball, Piper and Wheeler, JJ. [See post, p. 1043.]
Decree insofar as appealed from affirmed, without costs of this appeal to any party. Memorandum: While we think that the Surrogate erred in striking out certain evidence on the ground that it was prohibited under section 347 of the Civil Practice Act, we reach the conclusion that such evidence, added to the other proof, fails to establish that the lost will was in existence at the time of decedent's death or was fraudulently destroyed in his lifetime. ( Matter of Staiger, 243 N.Y. 468; Matter of Kennedy, 167 N.Y. 163; Matter of Robinson, 257 App. Div. 405; Throckmorton v. Holt, 180 U.S. 552.) While the first hearing, at which one subscribing witness was examined, might be construed as a preliminary examination pursuant to section 141 of the Surrogate's Court Act, the subsequent hearings were proceedings for the probate of the lost or destroyed will and petitioners moved to dispense with the testimony of the other subscribing witness and to admit the will to probate. On this record we cannot hold that the proceedings were preliminary under section 141. All concur. (Appeal from part of a decree denying probate to the alleged last will of decedent, and holding that the alleged will was destroyed by decedent during his lifetime.)