Katz' Will, In re

• Decision Date: 03 July 1974
• Parties: In the Matter of Proving the Last WILL and Testament of Nathan KATZ, late of the Town of Sharon, Deceased. Surrogate's Court, Schoharie County
• Court: New York Surrogate Court

Page 616

358 N.Y.S.2d 616

78 Misc.2d 790

In the Matter of Proving the Last WILL and Testament of Nathan KATZ, late of the Town of Sharon, Deceased.

Surrogate's Court, Schoharie County.

July 3, 1974.

Merton Morlang, Cobleskill, for proponent, Gussie Feuerstein.

Bellcourt & Lamont, Cobleskill, Walter L. Bellcourt, Cobleskill, of counsel, for objectant, Irving Fuchs.

DECISION

ROBERT H. ECKER, Surrogate.

Gussie Feuerstein has petitioned for probate of the Last Will and Testament of Nathan Katz, dated October 7, 1952, wherein she was named as Executrix.

Irving Fuchs, alleging to be the sole surviving child of Nathan Katz, has filed objections to probate, claiming that there was a later Last Will and Testament which revoked the 1952 Will, and which later Will was destroyed by Gussie Feuerstein who under the 1952 Will was sole beneficiary.

The Court has heard the proofs of the parties.

The Decedent, Nathan Katz, executed the October 7, 1952, Last Will and Testament, and the proof of its due execution is sufficient to entitle it to probate by this Court.

Irving Fuchs is the son of the late Nathan Katz and has standing to object to the probate of his father's 1952 Will.

There was a subsequent purported Last Will and Testament of Nathan Katz and either it or a copy of it was destroyed by Gussie Feuerstein, statedly to prevent an inheritance by the decedent's son, Irving Fuchs.

The contents of the second purported Last Will and Testament are unknown other than that the son, Irving Fuchs, was a beneficiary of that Will. There was no proof that the second purported Will was duly executed in a manner which would entitle it to probate.

Mrs. Feuerstein is a knowledgable person and the Court has no doubt that she was familiar with the Will which she destroyed and that by tearing up the Will she fully intended to prevent the decedent's son from inheriting under the Will and at the same time gain the entire estate for herself under the 1952 Will where she was the sole beneficiary.

Since due execution of the destroyed Will has not been established, the destroyed Will could not effect revocation of the 1952 Will. Matter of Andrews, 195 Misc. 421, 88 N.Y.S.2d 32.

The Court, accordingly, has no alternative except to admit the 1952 Will to probate.

Under Section 190.30 of the Penal Law, it is a felony to destroy a will, codicil or other testamentary instrument.

It is well settled law that 'no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxims are dictated by public policy, have their foundation in universal law administered in all civilized countries, and have nowhere been superseded by statutes.' Riggs et al. v. Palmer et al., 115 N.Y. 506, 511--512, 22 N.E. 188, 190.

Although under the evidence here this Court is without power to deny probate to the October 7, 1952 Will of the decedent, it does have...