Preuss

Katherine E. Schlegel was on April 12, 1957, declared to be what is now described as “mentally disordered” and committed for placement in a state hospital where she remains today.

*257 Joseph Schlegel, her husband, executed a will June 7, 1957, which provided that all of his estate should go to Katherine E. Schlegel, but if she should “fail to survive the distribution of my estate,” all of the property would go equally to his five children. Joseph Schlegel died February 22, 1964.

The executors of Joseph’s will are Ruth V. Preuss and Marvin H. Schlegel, two of his children. The property passing by virtue of the will was valued at $13,200.17. Marvin H. Schlegel was made guardian of his mother’s estate March 15, 1965, and continues in that capacity.

The Department of Mental Hygiene filed a verified petition for an order directing the executors to terminate the probate of Joseph’s estate and to distribute the assets to Katherine’s guardian. No evidence, by way of affidavits or otherwise, was offered in opposition to any of the allegations of the petition. The petition was nevertheless denied and the department takes this appeal.

The probate of Joseph’s estate has lain…