In re the Probate of the Paper Propounded as the Last Will & Testament of Vogelsang

Decree of the Surrogate’s Court of Suffolk county reversed upon the law and the facts, with costs, payable out of the estate, to all parties appearing and filing briefs, and proceeding remitted to the surrogate to try the issues of improper execution, ineompetency and undue influence. The presumption of fact, arising from the failure to produce the third copy or example of the will, which was executed in triplicate, that the will was destroyed animo revocandi, is overcome by the existing facts. The testator resided with his brother, one of the contestants. The copy in question was delivered to the testator in his brother’s presence, and the testator departed with it in company with his brother. The brother, while disclaiming possession of the instrument at any time, admitted that he had endeavored to obtain possession of it. He placed the testator in an infirmary, and while there he tried, unsuccessfully, to have the testator execute a will in his favor. The testimony of testator’s brother and the brother’s wife as to an alleged conversation with testator is incompetent under section 347 of the Civil Practice Act and its admission constituted substantial error. Lazansky, P. J., Young, Hagarty, Seeger and Carswell, JJ., concur.