Matter of Gallagher

[*1] Matter of Gallagher 2009 NY Slip Op 50951(U) [23 Misc 3d 1126(A)] Decided on May 18, 2009 Sur Ct, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2009
Sur Ct, Bronx County

In the Matter of the Estate of Anna Gallagher, also Known as Annie Gallagher, Deceased



1135-P-1980



The appearances are as follows:

Kathleen O'Rourke Seaman, Esq., for Dorothy Hackett, petitioner

Eleanor Vale, Esq., Guardian Ad Litem for unknown heirs and for persons whose whereabouts are unknown.

Lee L. Holzman, J.

This is an uncontested proceeding to probate, as an ancient document, a testamentary instrument dated October 2, 1969. The decedent died on July 11, 1980. Her only distributee whose whereabouts were known at the time of her death is a nephew who post-deceased. The post-deceased nephew is the sole residuary beneficiary under the propounded document. The petitioner is the spouse of the post-deceased nephew and the executrix of his estate. The nominated executor, who was a witness to the instrument, and the nominated alternate executor are both deceased. Two charities receive small pecuniary legacies under the instrument.Jurisdiction was obtained by publication over possible distributees whose identity or whereabouts are unknown. The guardian ad litem for those parties does not oppose the relief requested. The three page will, which is regular on its face, was witnessed by two witnesses and contains an attestation clause. It appears that the will was in the possession of the attorney draftsman until it was filed with this court shortly after the decedent's death, although it was not presented for probate until recently.

A will may be admitted to probate as an ancient document where it is more than 30 years old, taken from a natural place of custody and is unsuspicious in nature (Matter of Brittain, 54 Misc 2d 965 [1967]). Moreover, the attestation cause is entitled to weight in determining due execution (Matter of Cottrell, 95 NY 329, 335 [1884]).

Here, the propounded instrument was executed approximately 39 years prior to the date that the probate petition was filed, but only approximately 11 years prior to the decedent's death. The [*2]proponent has not submitted any case expressly discussing whether the 30-year period required to admit a will as an ancient document is measured from the date of execution to either the date of the decedent's death or the date the will is offered for probate. Nonetheless, the facts of the cases admitting a will to probate as an ancient document (see Matter of Brittain, 54 Misc 2d at 965 [will executed less than three years prior to the decedent's death admitted to probate as an ancient document 56 years after her death]), and the cases utilizing the ancient document rule without making any reference to the date of the decedent's death (see Matter of Samelson, 40 Misc 2d 623 [1963]; Matter of Hehn, 6 Misc 2d 801 [1957]), clearly establish that the required period is measured from the date of execution to the date the will is proferred for probate.Thus, the admission of a will to probate pursuant to the ancient document rule based upon the age of the instrument when probate is sought falls within the ancient document evidentiary rule under which a variety of documents that are at least 30 years old at the time of trial are received in evidence upon "their production from proper custody without proof of handwriting or of the death of the parties to their execution" (Matter of Barney, 185 App Div 782, 798 [1919] [citations omitted]).

Of course, where there is a prolonged unexplained delay between the decedent's death and the proferring of the will, that is a factor that the court may consider on the issues of whether the document is unsuspicious in nature or taken from a natural place of custody. Here, as the propounded instrument meets the requisite criteria to be admitted to probate as an ancient document, the petition is granted. Accordingly, a decree has been entered admitting the propounded instrument to probate and directing the issuance of letters of administration c.t.a. to the petitioner.

SURROGATE

Lee L. Holzman