Opinion
February 8, 1954.
Present — Adel, Acting P.J., Wenzel, MacCrate, Schmidt and Murphy, JJ.
In a proceeding to probate a will, objections were filed that the testator during his lifetime revoked the instrument offered for probate. The Surrogate dismissed the objections and admitted the will to probate. Contestants appeal from the decree entered thereon. Decree of the Surrogate's Court, Nassau County, unanimously affirmed, with costs. The question of revocation is considered a preliminary matter to be decided by the court without a jury as a matter of law. It involves the application of the provisions of section 34 of the Decedent Estate Law. ( Matter of Tremain, 257 App. Div. 996, affd. 282 N.Y. 485; Matter of Cook, 244 N.Y. 63; Matter of Erlanger, 136 Misc. 784, affd. 229 App. Div. 778; Matter of White, 106 Misc. 210; Matter of Fehringer, 183 Misc. 438; Matter of Coen, N.Y.L.J., Oct. 8, 1953, p. 693, col. 5.) The evidence was convincing that no duplicate original of the will had been executed and that the document offered by the contestants was an unexecuted typewritten copy of the instrument offered for probate. Although the testator may have intended to make a new will he did not do so. The revocation provisions of section 34 of the Decedent Estate Law were not complied with.