Majority
p. 385New York County. Hon. D. G. ROLLINS, Surrogate. June, 1885. Asinari v. Bangs. In the matter of the application for probate of a paper propounded as the will of Augusta Gillender, deceased.
Headnote
Upon a petition for probate of a will executed in duplicate, one of the two originals being shown to have been destroyed by the maker, animo revocandi, and there being no proof that the other was in her possession at any time after its execution, though it did not appear but that it was still intact,—Held, that a decree might be entered denying the application.
Application for the probate of decedent’s alleged will, made by Francis N. Bangs; opposed by Helena L. G. Asinari, decedent’s daughter.
p. 386
Root & Strong, for proponents.
Van Schaick, Gillender & Stoiber, for contestant
Upon the evidence submitted in this proceeding,-1 find that one of the duplicate wills proved to have been executed by Mrs. Gillender was torn in pieces by her, animo revocandi. There is no proof that the other is not still intact, but it is not shown to have been, at any time after its execution, in the decedent’s possession. It must, therefore, be presumed, in the absence of evidence to the contrary, that the destruction of that one of the two papers which was within her reach was intended to nullify the other. A decree denying probate may, therefore, be entered.
Before I can pass upon claims for costs and allowances, affidavits, showing what time has been devoted to the controversy, must he submitted to the clerk.