Matter of Borome

[*1] Matter of Borome 2003 NY Slip Op 51742(U) Decided on May 30, 2003 Surrogate's Court, New York County Preminger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2003
Surrogate's Court, New York County

In the Matter of the Probate Proceeding, Will of Joseph Borome, a/k/a Joseph Alfred Borome, Deceased.



4694-2002

Eve Preminger, J.

This is an uncontested proceeding to probate a will dated January 13, 1972 as an ancient document together with a codicil dated July 18, 2002. The codicil changed the nominated executor to a long-time friend of the decedent, Radmila Milentijevic, who is the proponent of the will. Preliminary letters testamentary were issued to Milentijevic. The Public Administrator of the County of New York was served and appeared; its counsel was requested to look into this matter.

To be admitted as an ancient document, a will must be over 20 years old (Matter of Davy, NYLJ, Dec. 29, 1999, at 30), taken from a natural place of custody, and be of an unsuspicious nature (Matter of Brittain, 54 Misc 2d 965). Nothing suspicious exists here with regard to the place of custody or the will itself. It was found in a locked desk drawer in decedent's apartment.

The search for the three witnesses who attested to the 1972 will's execution yielded that two had died and one could not be found after a diligent search. The attestation clause, which all three also signed, is to be accorded great weight (Matter of Samuelson, 40 Misc 2d 623, 624). Of the two witnesses to the codicil, one provided an affidavit that decedent was of sound mind and executed the codicil voluntarily and was under no restraint. The other witness moved to Jamaica and a forwarding address could not be obtained. A renunciation was also filed in this proceeding by the executor originally nominated in the 1972 will. A letter from him explains that he had written to decedent shortly before the codicil was executed, stating that he was too old and infirm to carry out the duties of executor of decedent's estate.

Copies of contemporaneous documents provided demonstrate that decedent's signature on them and at the end of the propounded will and codicil is the same. Under the circumstances, the testimony of the subscribing witnesses, who have died or cannot be located, can be dispensed with.

The Court is satisfied that the will and codicil are genuine and were validly executed (SCPA § 1408). The Public Administrator, who has investigated this matter, does not oppose the petition. The January 13, 1972 will as modified by the July 18, 2002 codicil should be admitted to probate as decedent's last will.

Decree signed.

Dated: May 30, 2003________________________________

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