
    Kings County.
    Hon. George B. Abbott. Surrogate.
    January, 1890.
    Matter of De Groot.
    
      In the matter of the application for probate of the will of Sarah M. De Groot, deceased.
    
    To entitle the admission to probate of a will destroyed in the lifetime of testator, it is necessary to prove an actual fraud against testator in the destruction of his will.
    
      The provisions of section 1865 of the Code of Civil Procedure requiring that the provisions of a destroyed will shall be distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent ■ to one witness, are to be liberally construed.
    Upon an application to admit to probate a will which had been destroyed in the lifetime of deceased, it appeared that it had been executed with due deliberation, bequeathing and devising everything to a person to whom she was engaged to be married. Although she had abundant opportunity, had she so wished, to destroy the will, testatrix did not do so, but it was on the morning of the day of her death destroyed out of her presence by her brother under circumstances indicating stealth in the preparation for its destruction. In addition to some testimony as to the expressed intention of testatrix the only evidence tending to prove that the destruction of the will was by direction of deceased was that of the brother and that was full of contradictions and improbabilities. The testimony of a servant showed that on the morning of the day of the destruction of the will testatrix 'thought the will was still in the box where it had been kept, and that she had not changed her testamentary intent or her sentiments towards her intended husband up to that time. Held, that this evidence was sufficient to show a fraudulent destruction of the will.
    Testatrix had made a holographic will which she delivered to her attorney with directions to draw a new will containing the same provisions. The draft of the new will made by the attorney was produced before the Surrogate and it was shown that this draft corresponded word for word with the will afterwards executed, except in two specified particulars. One C. dictated from the draft to the attorney M. and both these witnesses testified as to the correspondence of the will to the draft as described. Meld: that there was sufficient proof of the will to justify its admission to probate, upon proof of its fraudulent destruction during the lifetime of testatrix.
    Application for the probate of a will which had been destroyed in the lifetime of testatrix.
    The deceased testatrix Sarah M. De Groot was engaged to be married to Mr. Hodgkinson who was much younger than herself. In June, 1881, while in good health she executed a holographic will leaving her entire property to Hodgkinson. On 26th July following, being very ill, she consulted her attorney and was advised by him that her will had not been executed as required by law. She then directed him to draw up a new will and incorporate in it the same provisions. The attorney drafted the new will containing all the provisions of the old one and from this draft one C. read it off to the attorney word for word, who wrote from his dictation, reading back to C. each phrase as he wrote it, to insure accuracy. There were only two changes made from the draft in the will as finally drawn, in reference to which the testimony was clear. Testatrix executed the new will and destroyed the holographic will. Upon the hearing before the Surrogate both C. and the attorney identified the draft of the will and testified in regard thereto as stated above. This is the will which was destroyed on the morning of the death of testatrix. The facts as to the destruction appear in the opinion of the Sur.rogate.
    This is an application to admit the destroyed will to probate.
    John C. McGuire, for proponent.
    
    G. C. & F. Reynolds, for the contestants.
    
   The Surrogate.

This is an application to prove a will alleged to have been fraudulently destroyed during the lifetime of the testatrix. The case of Timon v. Claffy, 45 Barb. 438, settles the law applicable to the questions here presented, so far as this proceeding involves a construction of sections 2621 and 1865, of the Code of Civil Procedure, and section 42, article 3, title 1, chapter 6, of the Revised Statutes (8th ed. 2548). In accordance with this decision, to entitle the proponents to a decree admitting the destroyed will to probate, it is necessary for them to prove an actual fraud against the testatrix in the destruction of her will. The case, therefore, turns upon the question whether this will was fraudulently destroyed in the lifetime of the testatrix. It is conceded that the will was, in fact, destroyed by Horatio St. John, the brother of the testatrix, in the presence of Coziah Fanning, a trained nurse, who was attending the testatrix in her last illness, and Maggie Burns, the servant of the family. This was done by burning the will in the kitchen stove on the afternoon of the same day on which the testatrix died, a few hours later.

In June, 1889, the testatrix, who was a widow lady of middle age, while in her usual health, wrote a holographic will, leaving the bulk of her property to Mr. Hodgkinson, á man much younger than herself, to whom she was engaged to be married. In the July following she became seriously ill, and fearing that her holographic will might not be legally adequate to the fulfillment of her testamentary desires, sent for her lawyer, Mr. Maguire, on the 26th inst., and directed him to prepare her will in proper legal form, so as to dispose of her property in the same manner as expressed in her holographic will, giving him the paper. The will was so prepared and executed on the same day, and the holographic will was then destroyed in her presence. This expression of testamentary intent could not have been more deliberate, decided or careful. ° She died on the 31st day of July, five days later. It is impossible to harmonize the testimony of the nurse, Coziah Fanning, with that of the servant, Maggie Burns, as to the declarations of the testatrix in relation to the destruction of the will. The testimony of the servant, however, impresses me as being the more ingenuous.

If the bent of the mind of the testatrix was as testified to by the nurse, I cannot comprehend why the testatrix did not destroy the will herself, or why the nurse did not communicate this wish of the testatrix to the brother when he came a little later on that day, instead of waiting until the next day and then imparting it to him by accident. The testatrix never lacked opportunity to destroy the will herself, and there seems to me to have been too much of stealth in and preparation for its destruction by others to make the act appear in the light of an open and above board transaction.

I am obliged to utterly disregard the testimony of the witness, Horatio St. John, for the reason that it is so full of contradictions and improbabilities as to stamp it as unworthy of credence. While he is not an interested witness, so as to exclude his testimony under section 829 of the Code, the only person who stands between him and such interest is his father, a feeble and decrepit old man. From the testimony of Maggie Burns, it appears that the testatrix thought the will was still in the box the morning of the day she died, and she had not changed her testamentary intent up to that time, or her sentiment of regard for Hodgkin-son. Later in the morning we find the box, in which the will was kept, in the hands of “the wife of Horatio St. John. After this, early in the morning, St. John calls the nurse out of the room and asks her to go with him and see him burn the will, and within a few hours before her death, and not in her presence, the "will is burned in the kitchen stove.

No explanation is even suggested as to what might have produced any change in the testamentary intention of the deceased, so clearly expressed by her five days before, and after many weeks of careful deliberation. Her intimate and affectionate relations with Hodgkinson had never been interrupted, and continued to the very hour of her death. Upon all the evidence, and the peculiar circumstances surrounding the transaction and occurrence, I cannot resist the conclusion that the will was destroyed fraudulently, without the consent or direction of the testatrix. Section 1865 of the Code requires that the provisions of the will be clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.” This section is to be liberally construed. Hook v. Pratt, 8 Hun 102-109, and I think the proponents have sufficiently complied with its requirements. Let a decree be entered establishing the will and admitting it to probate.  