In re Cameron's Estate

1 Letters of Administration—Petition—Sufficiency—Surrogate’s Court —Jurisdiction. Under Code Civ. Proc. § 2662, requiring a petitioner for letters of administration to prove presumptively, “by affidavit or otherwise to the satisfaction of the surrogate,” that the decedent left no will, a verified petition for letters of administration on a decedent’s estate, stating that she died without leaving any valid last will and testament, to deponent’s knowledge, information, and belief, was sufficient to give the surrogate jurisdiction to determine such fact. 2. Wills—Existence—Intestacy—Presumption—Burden of Proof. Since, existence of a valid will cannot be presumed, the burden is on persons alleging such fact in opposition to a petition for letters of administration to show that a will had been executed and published as prescribed by statute, by a testator having testamentary capacity. 3. Same—Appeal—Rejection—Evidence—Harmless Error. Where a surrogate found that the evidence did not satisfy him as to the validity of an alleged will, and the record contained evidence which the surrogate erroneously struck out, but which he considered, and the supreme court sustained his findings of fact, his error in striking out such evidence was harmless. 4. Same—Execution—Evidence. Decedent executed an alleged will and codicil in New York, in which she appointed a resident executor, who after her death obtained probate thereof in an ex parte proceeding in Illinois, where the testatrix owned property. In an application for appointment of an administrator on the ground that decedent died intestate, photographic copies of the will and codicil, and an exemplified copy of the record and decree of the probate court in Illinois admitting them to probate, were produced before the surrogate; and the attesting witnesses, who were residents of New York, identified the photographic copy of the codicil, stating that it was a facsimile thereof, and testified to the due execution and publication of the original. No attempt was made to probate the will in New York. Held, that such facts were not sufficient to prove the authenticity and due execution of the will and codicil, and it was not error for the surrogate to grant letters of administration on decedent’s estate. Appeal by Nerva and May Farlin, infants, by their special guardian, from a decree of the surrogate’s court of Warren county adjudging that the decedent died intestate, and granting general letters of administration upon her estate. The proceeding was instituted upon the petition of Theodore Farlin, one of the next of kin of the decedent, alleging that Cynthia M. Cameron died in said county, an inhabitant thereof, February 2, 1898, “without leaving a valid last will and testament,” possessed of personal property within the state of New York of a value not exceeding $2,500, and stating the names and residences of her next of kin, among whom were these appellants, to whom citations were issued. They appeared in the proceeding, and by their general guardian denied that Cynthia M. Cameron died without leaving any valid last will and testament, and alleged that she did leave a last will and testament, and a codicil thereto, duly executed, whereby she bequeathed a portion of her estate to them, or for their benefit, which will and codicil had been duly proved and admitted to probate by and in the probate court of the county of Cook, in the state of Illinois, and that letters testamentary had been issued thereon by said court to the executor named in said will; that the said executor had duly qualified and was acting as such; and that said probate court had full jurisdiction in the premises. Upon the trial of the issue thus raised, of the intestacy of the decedent, the appellants offered in evidence a copy, duly exemplified according to the act of congress, of a decree' of the probate court of Cook county, in the state of Illinois, admitting to probate.certain instruments as and for the last will and testament, and codicil thereto, of Cynthia M. Cameron, photographic copies of which, certified to be fac similes thereof, were annexed to said copy of the decree, together with a transcript of the recitals of the records of the court of the testimony relating to the execution of the will and codicil, of the admission thereof to probate, and of the issue of letters testamentary thereon to Lewis H. Davis as executor thereof, and -of his qualification as such by giving the bond required by the court and taking the oath required by law. Evidence was given to the effect that the probate court named in the exemplified copy was and is a court of record, having general jurisdiction of all matters relating to the probate of wills, granting of letters testamentary, the care and settlement of estates left by decedents; that the original will and codicil were on file in the office of said probate court, and that the statute of Illinois requires that the original will shall remain on file in said office; and that the custodian thereof had refused to permit the same to be taken therefrom for production before the surrogate of Warren county. It appeared that said instruments were executed in Warren county, in this state; that the witnesses thereto resided in said county, and were examined there by a commissioner appointed by the probate court of Cook county, 111.; that at the time of the death of the decedent the instruments were in the custody of the executor, Davis, who resided in Chicago, Cook county, III., and that the decedent had assets in Chicago; and that no proceedings to prove the alleged will and codicil have ever beén instituted in Warren county. The two witnesses to' the alleged codicil testified before the surrogate of Warren county, in this proceeding, that they had witnessed a codicil for Mrs. Cameron, and that they had been examined as witnesses thereto before the commissioner appointed by the probate court of Cook county, 111., who then produced the original codicil before them, and that they identified it, and that the photographic copy now produced was a fac simile thereof; and they testified at length as to the execution and publication of the original -by Mrs. Cameron. Their testimony tended to show the due execution of the codicil. The appellants then asked for a commission to take additional testimony in Chicago as to the original instruments, their custody, and the proceedings for their probate. The application was denied by the surrogate, and upon motion of the petitioner the surrogate struck out the photographic copy of the alleged will and codicil, and the testimony of the witnesses given in connection therewith, and thereupon adjudged that the decedent died intestate, and issued letters of administration upon her estate to Lydia M. Upson. The appellants duly excepted to rulings of the surrogate. The surrogate, upon the settlement of the case, found that the evidence given in this proceeding did not satisfy him of the genuineness of either the alleged will or codicil, or of the validity of their'execution under the laws of this state.

Appeal from surrogate’s court, Warren county. Application by Theodore Farlin for letters of administration on the estate of Cynthia M. Cameron, deceased. From a surrogate’s decree granting the petition, hierva Farlin and another, claimants under an alleged will, appeal.