Opinion
February 6, 1950.
In a proceeding for the probate of an instrument in writing, bearing date April 30, 1948, purporting to be the last will and testament of deceased, order of the Surrogate's Court, Nassau County, striking out the answer and objections of contestants-appellants to the probate thereof and eliminating appellants from all further proceedings for the probate of said instrument, and decree admitting said instrument to probate as the last will and testament of deceased reversed on the law and the facts and the matter remitted to the Surrogate's Court of Nassau County for further proceedings in conformity herewith, with costs to appellants to abide the event. One duplicate original of an instrument in writing, bearing date August 31, 1946, purporting to be the last will and testament of deceased has been filed in the Surrogate's Court, as were affidavits of contestants averring that the other duplicate original of that purported will of August 31, 1946, was in the possession of the proponent-respondent after the death of deceased. That allegation was further set forth in supplemental objections filed by contestants and, so far as this record discloses, has at no time been controverted or denied by proponent. It is our opinion that proponent, if he desires to deny that such duplicate was in his possession after the death of deceased, should be required to do so by a verified reply and that a preliminary proceeding before the Surrogate to determine the rights of contestants under section 147 of the Surrogate's Court Act, should thereafter be had upon the issues so raised. ( Matter of Cook, 244 N.Y. 63, 72; Matter of Aspenleiter, 187 Misc. 167; 2 Butler on New York Surrogate Law and Practice, § 1059, p. 106.) Nolan, P.J., Carswell, Johnston, Adel and Sneed, JJ., concur.