
    SCHULTHEIS v. SCHULTHEIS et al.
    (Supreme Court, Special Term, Kings County.
    September, 1913.)
    Wiles (§ 302*) — Actions to Establish Lost Wiles — Sufficiency of Evidence.
    Under Code Civ. Proc. § 1861, authorizing actions to procure a judgment establishing a will where a will of real or personal property, or both, has been so executed that it might under the laws of this state be admitted to probate, but has been lost or destroyed by accident or design, section 1862 providing that, if the facts necessary to establish the validity of a will as prescribed in the preceding section are satisfactorily proved, final judgment must be'rendered establishing the will accordingly, and section 1865 providing that the plaintiff is not entitled to a judgment 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, where there was no attempt at any proof that the will sought to be established was fraudulently destroyed in the testator’s lifetime and the evidence to show its existence at the time of the testator’s death was scanty, unconvincing, and conflicting, judgment would be denied.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 575, 581, 700-710; Dec. Dig. § 302.] ' 1
    Action by Mary Schultheis against William H. Schultheis and another to establish a lost will. On application for judgment by de- . fault. Denied.
    E. W. C. Cunningham, of Brooklyn, for plaintiff.
    
      
      For other cases see same topic & § number m Dec. & Am. Digs. 1907 to date, & Rep’r indexes
    
   BENEDICT, J.

This action is brought under the provisions of-section 1861 et seq. of the Code of Civil Procedure to establish the last will of Henry Schultheis, who is alleged to have died on January 12, 1913, a resident of the borough of Brooklyn, leaving both real and personal property within this state.

The plaintiff is the widow and the defendants are two sons of the decedent. The defendants have failed to-appear or plead in the action and the papers were submitted to the Special Term for ex parte applications after such default upon depositions of witnesses sworn to before the court but not testifying orally.

It is alleged that the testator executed a will in favor of his wife more than 20 years before his death, and it is sought to prove the contents of that document, which it is attempted to show was lost shortly before the decease of the álleged testator. In order to maintain this action, the facts necessary to establish the validity of the will, as prescribed in section 1861, must be satisfactorily proved (section 1862). Section 1865 provides as follows:

“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.”

The proofs submitted do not satisfy the court that the will was in existence at the time of the testator’s death, and there is no attempt at any proof that it was fraudulently destroyed in his lifetime. In fact, the evidence in support of the first proposition is quite unsatisfactory (Collyer v. Collyer, 110 N. Y. 481, 18 N. E. 110, 6 Am. St. Rep. 405; Matter of Kennedy, 167 N. Y. 163, 60 N. E. 442), and the court would not be justified in pronouncing a judgment establishing a will upon such scanty, unconvincing, and conflicting evidence, especially as some of it is incompetent as well as insufficient. The affidavit of service upon the defendant Robert B. Schultheis is defective in several particulars, and there is no proof at all in support of the allegation that the defendants are the only heirs at law and next of kin of the testator.

These last are matters of minor consequence, however, and might be remedied if the court held other views as to the merits of the proceeding than those indicated above; but, holding these views, I am compelled to deny the application.  