Alexandravicus' Estate, In re
| Decision Date | 17 April 1964 |
| Docket Number | No. A--32,A--32 |
| Citation | 199 A.2d 662,83 N.J.Super. 303 |
| Parties | In the Matter of the ESTATE of Joseph ALEXANDRAVICUS, Deceased. Jonas BUDRYS, Consul General of the Republic of Lithuania at New York, Plaintiff-Appellant, v. Jusse MOSKOWITZ, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Jesse Moskowitz, Jersey City, respondent, pro se.
Before Judges GAULKIN, FOLEY and LEWIS.
The opinion of the court was delivered by
LEWIS, J.A.D.
This is one of several appellate reviews incident to the estate of Joseph Alexandravicus, deceased. Death occurred February 15, 1953, and the litigated issue as to the right to administer decedent's estate is still a matter of controversy.
The detailed and historic facts portrayed in the judicial opinions previously reported need not be here recited. See In re Estate of Alexandravicus, 35 N.J. 230, 172 A.2d 641, (1961) and Aleksandravicius v. Moskowitz (action by attorney-in-fact for heirs with respect to sale of real estate), 76 N.J.Super. 470, 184 A.2d 883 (App.Div.1962).
Subsequent to the afore-mentioned Supreme Court decision (decided June 20, 1961), Jonas Budrys, Consul General of the Republic of Lithuania, instituted proceedings in the Hudson County Court, Probate Division, demanding that he be granted letters of administration. The crucial allegations set forth in his verified complaint may be summarized:
Joseph Alexandravicus of the County of Hudson died intestate leaving him surviving two brothers, Vincas and Antanas, residents of the Republic of Lithuania.
Said Republic was unlawfully subjugated on June 15, 1940 and, shortly thereafter, it was illegally annexed into the Union of Soviet Socialist Republics. The occupied government is not recognized by the United States of America.
Plaintiff's consular status with the Republic of Lithuania is evidenced by an exequatur issued to him by the Government of the United States. Pursuant to the 'laws and treaties' of our country and the Republic of Lithuania, he, as consul general has the power and authority to act as attorney-in-fact for his nationals who inherit American property in the State of New Jersey.
The application of Jesse Moskowitz, Esq., for such as appointment was predicated upon a powr of attorney (dated February 19, 1959), executed by decedent's two brothers empowering the New York law firm of Messrs. Wolf, Popper, Ross, Wolf & Jones, or its nominee, to apply for letters of Upon being served with a copy of the pleading and order to show cause returnable December 15, 1961, Moskowitz moved before the Supreme Court for a judicial directive under its prior decision. On January 15, 1962 that court ordered the issuance of a special mandate providing, Inter alia, that letters of administration be issued to Moskowitz upon filing the required bond and that there be a 'prompt disposition of the complaint of Budrys upon oral testimony with restraint in the meantime against the disposition of funds by Moskowitz.' After a full hearing before the County Court, the trial judge entered an order on August 3, 1962 vacating the order to show cause and dismissing the complaint.
administration. Said power was not executed before officials of the Republic of Lithuania and was drafted in both the Russian and English languages which neither of decedent's brothers understood. It 'was not explained to them before they executed the document and * * * their signatures were obtained under duress by officials of the said illegal and unrecognized occupational authorities,' and the instrument should, therefore, be adjudged void.
On appeal to this court plaintiff advances two major arguments to support a reversal: (1) the power of attorney and designation under which the authority of Moskowitz emanates is invalid; and (2) the consul general has the exclusive right to be appointed administrator.
Preliminarily, we shall dispose of defendant's overriding defense that the basic issues raised by Budrys in his complaint, and here on appeal, have already been determined by our Supreme Court and that plaintiff, in effect, is relitigating questions which are Res judicata. We do not agree with that contention. The consul general was not a party to either the prior litigation on appeal before the Supreme Court or the subsequent proceedings wherein a petition for rehearing was denied. His presence during oral argument on appeal did not afford to him any legal status in the proceedings. While the court, upon the record then before it, concluded that Moskowitz should be appointed as administrator of the We turn now to the merits of plaintiff's arguments.
estate, it did not foreclose the right of an interested party to challenge the legality of the documents underlying the appointment. There was an express direction that the order appointing him contain a provision as in In re Watson, 35 N.J. 402, 410, 173 A.2d 266, 270 (1961), for leave 'to all interested persons to apply for the designation of a different administrator or such other relief as may be appropriate.' Any doubt as to the court's intention or meaning in that respect was explicitly resolved by its aforesaid special mandate directing the trial court to proceed with the disposition of the cause of action initiated by plaintiff.
The voluntariness of the power of attorney and the legality of the notarial acts appended thereto are questioned. Aside from an interpreter who was produced to identify the foreign language instruments, two witnesses testified for the plaintiff. They were Joseph Alexandravicus, of Harrison, New Jersey, a cousin of the decedent, and one Anicetas Simutis, a vice-counsul associated with the New York office of the Consul General of the Republic of Lithuania, appearing for Budrys who was recuperating from a heart attack.
Joseph's testimony was that he formerly lived in Lithuania and left that country in 1913 to take up permanent residence in the United States. He knew decedent's two brothers Vincas and Antanas and, in fact, prior to his immigration to this country, they had all lived in the Village of Miknishkiai, County of Lazdiisky. The witness stated that said brothers did not speak Russian and only spoke the Lithuanian Baltic language. Under cross-examination, however, Joseph admitted that he had not communicated with them since he had left their country and had not heard from them until about four months before trial when he received a short uninformative letter from Vincas expressing a desire to hear from him. That letter had not been answered.
Neither the testimony of Joseph nor any other testimonial or documentary evidence established plaintiff's contention that the power of attorney, drafted in the Russian and English languages (dual-columned form) and signed by the two heirs and next of kin, was not understood by them or that its execution was the result of coercion and duress. It is fundamental that evidence is essential to prove such an allegation. We cannot assume from the fact that the signers were familiar only with the Lithuanian language in 1913 (at which time they were 16 and 10 years of age respectively), that they were in 1959 (when the power was executed) incapable of knowing or understanding the foreign languages to which they had affixed their signatures. Indeed, it would be reasonable to expect that the people of a subjugated country would probably acquire, over a period of nearly 20 years, some basic acquaintanceship with the spoken tongue of the nationalizing authority under which their homeland became a satellite nation.
The vice-consul gave evidence as to his official position and explained that Lithuanian was the state language under the 1938 constitution of his country. He testified as to the history of Lithuania and the Soviet 'take-over' which relegated his country to a Socialist Republic of the Soviet Union. The responsibility of his office is to the chief of the Lithuanian Diplomatic Service residing in Rome. He said that notaries public occupied comparatively high offices, 'tantamount to judges,' and that they received their appointments from the Minister of Justice. Under cross-examination it was developed that the witness did not know of any notaries appointed by the Republic of Lithuania since its annexation; he said the Republic does not presently have a Minister of Justice.
The documentary facts are not in dispute. The identity of the surviving brothers, the authenticity of their signatures and their legal capacity, were certified February 19, 1959 by a notary of the Ministry of Justice of the Lithuanian Soviet Socialist Republic. The notary's qualification and signature were certified by the Chief of the Revisionary Department of The trial judge received a letter dated January 31, 1962 addressed to him from the United States Department of State which included the following information: the Government of the United States does not recognize the forced incorporation of Lithuania into the Union of Soviet Socialist Republics; it continues to recognize the diplomatic and consular officers of the Republic of Lithuania, and the position of the Department is the same as declared in a communique of October 1, 1959 declaring that the effect to be given a power of attorney executed in the Soviet Union by nationals of Lithuania is for the courts to decide.
the Ministry of Justice of the Lithuanian Soviet Socialist Republic whose signature was visaed by the Consular Administration of the Ministry of Foreign Affairs of U.S.S.R. There was an accompanying certificate by an American consul certifying the authenticity of the Russian minister's signature and the official Russian seal; a caveat thereto stated, 'This authentication is not to be interpreted as implying recognition of Soviet sovereignty over Lithuania.'
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