In re Proving the Last Will & Testament of Buckham — 22 N.Y. St. Rep. 361

Majority

p. 361

In the Matter of Proving the Last Will and Testament of Catharine J. Buckham, Deceased.

(Surrogate's Court, Kings County,

Filed March 23, 1889.)

Headnote

Will—Probate or on presumption op death.

When the evidence to establish the testator’s death, though purely circumstantial, is of such a conclusive character as to leave no reasonable doubt upon the mind of the surrogate, the will will be admitted to pror bate.

—This case is a peculiar one from the fact that the proof of death is entirely circumstantial.

The affidavits presented allege that the testatrix disappeared from her home in the night-time, in May last, and nothing has since been heard of her, and no trace whatever has been found of her. She was sixty-seven years of age, in very feeble health, her mind was affected, and according to the medical testimony, she could not, in all probabilityy have lived until this time under the most favorable circumstances.

Every measure possible was taken to ascertain if Mrs. Buckham was living, and the case was widely advertised in the press. The testimony also showed that it was only a short distance from the house of the testatrix to the North, river, and that she went out in the darkness of a stormy night, under circumstances that led to the conclusion that she must have been drowned.

p. 362

Mr. C. H. Machin, attorney for the proponent, cited, with other authorities, the Case of Wm. A. W. Stewart, who was supposed to have been lost at sea in the blizzard of last March, and whose will was admitted to probate by Surrogate Ransom in November (reported in 18 N. Y. State Rep., 978), and claimed that the presumption of death in the case of Mrs. Buckham was stronger than in that case.

After careful consideration I have decided to admit the will to probate.