
    In the Matter of the Estate of Louis Ruedin, Deceased.
    Surrogate’s Court, New York County,
    March 23, 1938.
    
      Maislen & Levy, for the executrix.
    
      Irene Halamka, for the respondents.
   Delehanty, S.

Distributees of deceased here move for an order vacating the decree of probate. It is conceded that the moving parties were not cited in the probate proceeding. Objection to the relief sought is made solely on the ground that the moving parties have failed to show reasonable likelihood of success in a contest of the propounded instrument.

In cases where the existence of a will of deceased is conceded there is ample authority for the position taken by the respondents in this proceeding. The court holds that such authorities are not applicable to the facts here present. No original will of deceased was presented. The probate petition asserted a loss or destruction of the original paper propounded and asserted that such loss or destruction occurred after the death of the deceased. There is involved in this probate proceeding, therefore, two issues on both of which the proponent has the burden of proof. Proponent must' establish not only the usual testamentary acts required for a valid will'but-must also establish that an instrument validly executed was in existence unrevoked at deceased’s death. The distributees of deceased ought to be heard in a case where the latter element is presented by the record. No authority to the contrary has been called to the attention of the court.

Accordingly the prayer of the petition is granted; the probate decree is vacated as to the moving parties and the latter have until ten days after the entry of the order upon this application in which to file an answer in the proceeding. When and if such answer is filed the issue, if any, arising thereon will be placed upon the''probate calendar for trial in the regular course.

Submit, on notice, order accordingly.  