Majority
p. 868In the Matter of the Application of Matilda Ruppert, as Administratrix, etc., of Louis L. Ruppert, Deceased, to Discover Certain Property of Said Deceased Claimed to Be Withheld. Emilia Michaels, Appellant; Matilda Ruppert, as Administratrix, etc., of Louis L. Ruppert, Deceased, Respondent.
Appeal from a decree in a discovery proceeding. Decree of the Surrogate’s Court of Kings County unanimously affirmed, without costs. Assuming that the burden of proof rested upon the administratrix, the proof clearly establishes that she sustained it in so far as concerned the items of personal property directed to be turned over to her by the appellant on the theory that they were the property of the decedent at the time of his death. The observations of the referee, invoked by the appellant to sustain the contention that an undue burden of proof was placed upon her, should be interpreted, in view of the context, merely to mean that the appellant was under a duty to come forward with proof to avoid the conclusions required
p. 869
by the proof theretofore adduced on behalf of the administratrix. It may not be said that the exercise of discretion in respect of costs was improvident. Present — Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ.