
    Matter of the Probate of a Paper Offered for Probate as the Last Will and Testament of Isaac Reiffeld, Deceased, and Alleged to have been Destroyed During his Lifetime.
    (Surrogate’s Court, Albany County,
    December, 1901.)
    Surrogate — His jurisdiction to probate a destroyed will — Code C. P., §§ 1865, 2621.
    A surrogate cannot admit a destroyed will to probate unless the will was in existence at the testator’s death or was fraudulently destroyed in his lifetime, and, hence, an accidental destruction of the will without his knowledge or consent while he was living and the will was in the care of a custodian is not enough to confer jurisdiction.
    Proceeding for probate of will, accidentally destroyed during the lifetime of the decedent.
    Henry E. Stern, for Morris Coplon, executor.
    Martin D. Conway, special guardian, for minor children, proponents.
    Charles Irving Oliver, for Bella Reiffeld, contestant.
   Fitts, S.

Isaac Reiffeld died at the city of New York on the 15th day of August," 1901, being at the time of his death a resident of the city and county of Albany; on the 13th day of June, 1901, he executed at the city of Albany his last will and testa-' ment, by the terms of which- he bequeathed the proceeds of two beneficiary life certificates, and appointed Morris Coplon as executor of the will. The testator delivered the will to one Harris Sherman, a tailor and retail merchant, residing on South Pearl street, in this city, for custody and safekeeping. Mr. Sherman deposited the will in a drawer of a desk at his store shortly after its receipt, and the same remained there until its destruction by fire on the 2d of July, 1901; on that date the store and building occupied by Mr. Sherman-were totally destroyed by fire, including the desk in which this will was contained and the contents thereof; that the drawer of the desk containing the will was locked and the key in the possession of Mr. Sherman, and he testified that he saw the will on the morning of the fire. At the time of the execution of this will Mr. Reiffeld was suffering from tuberculosis and within ten days of the execution of this instrument departed for the city of ¡New York and from there went, to Denver, Colorado, and finding that the climatic conditions there existing did not benefit his health, returned to the city of New York and died within a short time after his arrival. There is no proof to indicate that Mr. Reiffeld was informed of the destruction of this will or had notice of its destruction at the time of his death. The fire was of an accidental character. Upon the hearing in this proceeding the provisions of the will were clearly established by the subscribing witnesses to the will and Mr. McGraw who drafted the same. This proceeding is instituted under section 2621 of the Code of Civil Procedure, which provides as follows: “ A lost or destroyed will can be admitted to probate in a surrogate’s court, hut only in a case where a judgment establishing the will could be rendered by the supreme court, as prescribed in section 1865 of this act.”

Section 1865 provides as follows:

“ § 1865. Proof of lost will in certain cases.— But the plaintiff is not entitled to a judgment, establishing a lost or destroyed will, as prescribed in this article, unless the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime; and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.”

A will destroyed during the lifetime of a testator, in order to be admitted to probate, must be shown to have been fraudulently destroyed. “ Fraud ” is defined by the Standard Dictionary in its legal aspect as “ any artifice or deception practiced to cheat, deceive or circumvent another to bis injury.” (2) “ Any act, omission or concealment that involves a breach of duty, trust or confidence and which is injurious to another or by which an undue advantage is taken of another.”

“ Fraudulent ” is defined objectively as “ based on proceeding from or characterized by fraud.”

Fraudulently ” is an adverb of the same meaning and is here used to characterize the manner of destruction intended by the ■statute.'

Here was no fraudulent destruction such as is provided for by statute, but only an accidental destruction for which no provision is made.

The title to all property, real and personal, vests primarily in the sovereign State upon the death of the owner and can only be •devised or bequeathed in the manner and to the extent provided by statutes which are to be strictly construed, so that I must determine, as a matter of law, that the accidental destruction, of this instrument now offered for probate was fraudulent. I am unable to arrive at such a conclusion. The authorities referred to by the proponents do not, in my judgment, so decide. The will was destroyed accidentally without the consent or knowledge of the testator, and by a failure to admit this instrument to probate a different disposition will be made of his property than he intended. As I construe the statute and construe the term “ fraudulently ” as applicable thereto, it appears to me that, in order to come within the lines thereof, there must be some intervening human agency in motion, or set in motion, to have brought about its destruction. I am unable to see how the mere accidental destruction of this instrument, through the fault of no one, through the active agency of no one, can be construed or deemed of such a fraudulent character •as to permit of the application of this statute. Accordingly this application for the probate of this paper as the last will and testament of Isaac Reiffeld, deceased, the same having been accidentally and not fraudulently destroyed during his lifetime, is denied, and a decree can be entered to that efféct.

Probate denied.  