Decree reversed on the law and the facts, with costs to all parties filing briefs, payable out of the estate, the application granted, and the matter remitted to the Surrogate's Court for the entry of a decree accordingly. The burden of establishing that the petitioner abandoned her deceased husband was upon the administrator with the will annexed and the other parties to the proceeding who alleged the fact. ( Matter of Vogel, 251 App. Div. 741.) This burden was not sustained. If the testimony given by the petitioner is rejected, the record is devoid of any proof as to what caused the separation.
Carswell, Johnston, Adel and Close, JJ., concur; Lazansky, P.J., dissents, with the following memorandum:
The surrogate was fully justified in refusing to believe the testimony of the appellant as to the reason she separated from her husband. If she did not leave her husband for the reason she gave, then she left voluntarily. The decree of the Surrogate's Court should be affirmed.