
    In the Matter of the Probate of the Will of Julia D’Anna, Deceased.
    Surrogate’s Court, Kings County,
    October 28, 1953.
    
      F. W. Klein for Mary D. McGowan, proponent.
   Rubenstein, S.

The court is satisfied on all the evidence that the decedent executed the instrument offered for probate, in duplicate, in accordance with section 21 of the Decedent Estate Law, and at its execution she was of sound mind and fully competent to make a will.

The instrument propounded is a carbon imprint. The ribbon counterpart has not been produced. The attorney draftsman has testified that the carbon counterpart produced was delivered to decedent and that the ribbon counterpart was retained by him and placed in the files in his office. Since the execution of the instruments in 1935, he has moved several times, and, in addition, he kept a set of overflow files in a home where he once lived. He made a thorough and diligent search for the ribbon counterpart of the instrument and was not able to find it. He testified that the ribbon counterpart was never in the decedent’s possession. In such circumstances, the presumption arising from the nonproduction of a counterpart that decedent destroyed the instrument with intent to revoke it has been satisfactorily overcome and the instrument propounded is entitled to probate.

Proceed accordingly.  