Bielinis' Estate, In re

• Decision Date: 20 November 1967
• Citation: 55 Misc.2d 191,284 N.Y.S.2d 819
• Parties: In re ESTATE of Kipras BIELINIS, Deceased. Surrogate's Court, New York County
• Court: New York Surrogate Court

Page 819

284 N.Y.S.2d 819

55 Misc.2d 191

In re ESTATE of Kipras BIELINIS, Deceased.

Surrogate's Court, New York County.

Nov. 20, 1967.

Morton Brauer, New York City, for Consul General of Lithuania.

Stephen Bredes, Jr., Brooklyn, for executors.

Louis J. Lefkowitz, Atty. Gen., New York City, pro se and for ultimate charitable beneficiaries.

Wolf, Popper, Ross, Wolf & Jones, New York City, for distributees (Cecelia Bilsky, New York City, of counsel).

SAMUEL J. SILVERMAN, Surrogate.

This is a motion by the Consul General of Lithuania to strike certain powers of attorney executed by legatees residing in Lithuania and the notice of appearance of the firm of Wolf, Popper, Ross, Wolf & Jones as attorneys, pursuant to the power of attorney. The Wolf, Popper firm in their opposing affidavit requests that the Lithuanian Consul be barred from further participation in the proceeding.

I. WHETHER THE POWERS OF ATTORNEY ARE VALID ON THEIR FACE

The major issue is the validity of the powers of attorney and specifically the acknowledgment or proof of the execution thereof. The problem arises out of the fact that, although the former territory of the Republic of Lithuania has been occupied by and incorporated into and is now governed by the Union of Soviet Socialist Republics as part of the USSR, the United States Government does not recognize the incorporation of this territory by the USSR and continues to recognize the Consul General of Lithuania, presumably pursuant to a designation by the Lithuanian Government in Exile. The powers of attorney were executed and acknowledged in the former territory of Lithuania before a notary of the Lithuanian SSR (presumably, a constituent republic of USSR). The authority of the notary has been authenticated by a member of the Supreme Court of the Lithuanian SSR, whose signature, in turn was certified by an officer of the Ministry of Foreign Affairs of the USSR, whose signature, in turn, was certified by the Consul of the United States in Leningrad which, however, contains the proviso: 'This authentication is not to be interpreted as implying recognition of Soviet sovereignity over Lithuania.'

Prior to the decision of the Appellate Division, First Department, in Matter of Luberg, 19 A.D.2d 370, 243 N.Y.S.2d 747 (1963), a dictum in which indicated the validity of such powers of attorney and acknowledgments, a line of decisions had held such powers of attorney and acknowledgments invalid on their face. Following the Luberg decision, Surrogate Cox held in Matter of Luks, 45 Misc.2d 72, 256 N.Y.S.2d 194 (1965) and Matter of Jurkevics, N.Y.L.J. June 1, 1965, p. 18, col. 4, that such powers of attorney and acknowledgments were still invalid on their face. With great respect, I am unable to agree with the latter decisions and I here state my reasons:

Former Personal Property Law, section 32--a (now EPTL section 13--2.3) requires powers of attorney relating to an interest in a decedent's estate to be acknowledged or proved in the manner prescribed by the laws of this state for the recording of a conveyance of real property. Real Property Law, section 301, requires that the acknowledgment of such a conveyance

'* * * may be made in foreign countries before any of the following officers acting within his territorial jurisdiction * * *.

4. A notary public.'

In this case, in view of the non-recognition by the United States of the Soviet incorporation of Lithuania, the moving party's position is that the notary in Lithuania (and all the other certifying Soviet officials) are not 'officers acting within his territorial jurisdiction'. (Real Property Law, § 301).

The problem here presented is thus an aspect of the recurring problem of the effect on the rights of parties before our courts of the existence in certain territories of the world of de facto governments which our Government does not recognize as de jure.

Basic principles in this area of the law were stated by Judge Cardozo in Sokoloff v. National City Bank, 239 N.Y. 158, 145 N.E. 917, 37 A.L.R. 712 (1924) and Judge Lehman in Russian Reinsurance Co. v. Stoddard, 240 N.Y. 149, 147 N.E. 703 (1925).

In the Sokoloff case, Judge Cardozo said (239 N.Y. at 165, 145 N.E. at 918):

'Juridically, a government that is unrecognized may be viewed as no government at all, if the power withholding recognition chooses thus to view it. In practice, however, since juridical conceptions are seldom, if ever, carried to the limit of their logic, the equivalence is not absolute, but is subject to self-imposed limitations of common sense and fairness, * * *.'

In the Russian Reinsurance case, Judge Lehman said:

'The fall of one governmental establishment and the substitution of another governmental establishment which actually governs; which is able to enforce its claims by military force and is obeyed by the people over whom it rules, must profoundly affect all the acts and duties, all the relations of those who live within the territory, over which the new establishment exercises rule. Its rule may be without lawful foundation; but, lawful or unlawful, its existence is a fact, and that fact cannot be destroyed by juridical concepts. The State Department determines whether it will recognize its existence as lawful, and, until the State Department has recognized the new establishment, the court may not pass upon its legitimacy or ascribe to its decrees all the effect which inheres in the laws or orders of a sovereign. The State Department determines only that question. It cannot determine how far the private rights and obligations of individuals are affected by acts of a body not sovereign, or with which our government will have no dealings. That question does not concern our foreign relations. It is not a political question, but a judicial question. The courts in considering that question assume as a premise that until recognition these acts are not in full sense law. Their conclusion must depend upon whether these have nevertheless had such an actual effect that they may not be disregarded. In such case we deal with result rather than causes. We do not pass upon what such an unrecognized governmental authority may do, or upon the right or wrong of what it has done; we consider the effect upon others of that which has been done, primarily from the point of view of fact rather than of theory.' (240 N.Y. at 158, 147 N.E. at 705).

The Appellate Division, First Department, has recently had occasion to consider these principles in connection with the precise question of powers of attorney executed by residents of occupied Baltic republics. In Matter of Luberg, 19 A.D.2d 370, 372, 243 N.Y.S.2d 747, 750 (1963) Judge Steuer said:

'It is not every act of an official of an unrecognized government that is regarded as a nullity. The competence of the courts to give effect to such acts is only limited where the acts are political in character (Russian Reinsurance Co. v. Stoddard, 240 N.Y. 149, 147 N.E. 703). If this were not so, many situations would become intolerable. It would be impossible to establish the elementary facts of birth, marriage, death or the like where the certification of the same was made by, or the official before whom proof was to be taken was an appointee of, the unrecognized regime. Moreover, we would perforce have to refuse nationals of the regime that we do recognize access to our shores because the only persons who could in fact authenticate their passports would be officials of the regime that is not recognized. In that way we would be acting in a manner that was in practical effect more oppressive to those nationals whose independence we are seeking to further than is the government which usurped authority over them. We conclude that because the power was authenticated by an official of the De facto rather than the De jure government does not have the effect of requiring the court to disregard it.'

In Matter of Luks, 45 Misc.2d 72, 74, 256 N.Y.S.2d 194 (1965) Judge Cox properly characterized this statement as dictum. He held the power of attorney before him invalid because: (a) Whereas in the Luberg case the one power of attorney on which the court actually passed (one of two that had been executed), though executed by an Estonian resident, was in fact executed in Leningrad, a portion of the USSR as to which the United States of course recognizes the jurisdiction of the government of the USSR as the de jure government. In the Luks case, on the other hand, the power of attorney involved was executed in Estonian territory as to which the United States Government does not recognize the USSR as the de jure government. (b) In the Luks case, the certificate of the Soviet officials pursuant to Real Property Law, § 301--a was that the power of attorney had been executed in accordance with the laws of the USSR, which, in accordance with the decision of our State Department, are not the de jure laws of the occupied territory where the power of attorney had been executed, while in the Luberg case the laws of the USSR are the de jure law of Leningrad where the particular power of attorney on which the court was passing was executed.

I think I should follow the dictum of the Appellate Division in the Luberg case as to the authority of the notary. We are concerned here not with the rights of the USSR but with 'private rights and obligations of individuals,' 'not a political question, but a judicial question.' Russian Reinsurance Co. v. Stoddard, supra, 240 N.Y. at 158, 147 N.E. at 705. Acknowledgment is only a subsidiary evidentiary requirement. It is merely a convenient method of proving that the instrument was in fact validly executed; and the question here is merely one of appropriate evidence of the signature to a power of attorney by individuals who concededly have the right to execute such powers of attorney. If such powers were executed by these same individuals in territory of the USSR, where the USSR is the de jure government, we...