Caruso v. Caruso

• Decision Date: 03 February 1930
• Docket Number: Nos. 46, 104, 130, 131.,s. 46, 104, 130, 131.
• Citation: 148 A. 882
• Parties: CARUSO v. CARUSO et al.
• Court: New Jersey Supreme Court

148 A. 882

CARUSO

v. CARUSO et al.

Nos. 46, 104, 130, 131.

Court of Errors and Appeals of New Jersey.

Feb. 3, 1930.

Black, J., dissenting.

Appeals from Court of Chancery.

Proceedings by Dorothy P. B. Caruso, individually and as administratrix of the estate of Enrico Caruso, deceased, against Rodolfo Caruso, Enrico Caruso, Jr, Gloria Caruso, and others. From the decrees entered (101 N. J. Eq. 215, 137 A. 154; 101 N. J. Eq. 350, 139 A. 812; 141 A. 16, 143 A. 771), complainant, Enrico Caruso, Jr, and Gloria Caruso appeal. Reversed, and proceedings dismissed.

McDermott, Enright & Carpenter, and Treacy and Treacy, all of Jersey City (John M. Enright, of Jersey City, of counsel), for appellant administratrix.

Alfred F. Seligsberg, of New York City (Frederic R. Coudert, of New York City, on the brief), for appellant Dorothy P. B. Caruso individually.

Martin V. Bergen, of Camden, and Marcel A. Viti and DeWitt C. Robinson, both of Philadelphia, Pa, for appellant Gloria Caruso.

Merritt Lane, of Newark, and John L. Griggs, of Paterson, for appellant Enrico Caruso, Jr.

Louis B. LeDue, of Camden, and John Dashiell Myers, of Philadelphia, Pa, for respondent Victor Talking Mach. Co.

KALISCH, J. The basic fact which led to litigation in the courts of this state was a contract, entered into, and to be performed in this state, by the famous tenor, Enrico Caruso, in his lifetime, with the Victor Talking Machine Company, a corporation of this state, whereby it agreed to pay a royalty of 10 per cent. on all sales of the Caruso singing records for an indefinite period of time, and under which contract the Victor Company had already paid royalties after Caruso's death, for the years 1921 and 1922, amounting to more than $500,000, to his widow, Dorothy Park Benjamin Caruso, who had been appointed administratrix of the personal effects of her deceased husband, in the City of New York, by the Surrogate of the County of New York; and upon the faith of letters of administration issued to her, in that jurisdiction, letters ancillary were granted to her in this state, by the Prerogative Court.

Enrico Caruso was a native of Italy. He was born in Naples, and died there, August 2, 1921. He was a citizen of Italy and he was domiciled there at the time of his decease. He left him surviving his wife, Dorothy Park Benjamin Caruso, to whom he was married August 20, 1918, and Gloria, an Infant daughter of a very tender age. He also left him surviving two natural sons, Rodolfo and Enrico, Jr. They were acknowledged by Caruso as his offspring, and, by his will, as his heirs, but, because they were by a mother, who, at the time of their conception and birth, was married to another, they were not entitled to inherit from their putative father, under the Italian law, in case of his intestacy. He also left a brother, Giovanni Caruso, and a stepmother, Maria Castaldi. Rodolfo was of full age, and Enrico, Jr, was 20 years old.

On January 4, 1919, Caruso made and executed a holographic will, whereby he devised and bequeathed his entire estate to his said sons, Rodolfo and Enrico, Jr, and to his brother Giovanni, as his universal heirs, bequeathing to his wife that portion of his estate which, under the Italian law, she would have been entitled to receive by reason of her marriage; and the will also provided that the stepmother, Maria Castaldi, shall be provided for out of the estate, until her death.

Gloria was born in New York on December 18, 1919, nearly a year after the making of said will. No later will by Caruso was found. The will and a duplicate thereof were deposited with a notary public, at Naples, in the presence of the Pretor, on August 8, 1921. The validity of the will having been drawn into question, as well as the rights of the beneficiaries, the widow and her infant child, Gloria, on August 10, 1921, the widow filed a petition with the Civil and Penal Tribunal of Naples for the appointment of a special guardian of the Infant, Gloria, pursuant to the requirements of the Italian Civil Code. Two days later the tribunal made an order appointing one Canessa as special guardian of the minor, Gloria, which order of appointment, Inter alia, recites "to assist her (the infant), only in those acts in which conflicting interest with her mother may arise."

As to Enrico Caruso, Jr., who was also a minor, no such proceeding was necessary, since he had no parent with whom a conflicting interest could arise; his legal status being provided for under a different provision of the Civil Code.

Under the Italian law, the birth of Gloria rendered the will made by Caruso, on January 14, 1919, a nullity. By virtue of paragraph 252 of the Civil Code, a family council was constituted. This council was presided over by a district judge. It appointed one Manlio as guardian of Enrico, and the proceedings there had were approved by the Civil and Penal Tribunal of Naples, by a decree of August 26, 1921. Subsequent thereto, all the parties in interest, and the guardians of the two infants, entered into a negotiation for the settlement of the estate, whereever situate, to be embodied into a family agreement, to be submitted to the Tribunal for approval. A family agreement was reached and entered into between all the parties in interest, and the guardians of the two infants, and, after undergoing certain formalities required by the Italian law, the family agreement was submitted for approval to the Naples Tribunal, which, on June 16, 1922, decreed inter alia, as follows: "Authorize the Victor Talking Machine Company to pay each year the ten per cent. due Comm. Enrico Caruso, as follows: One-eighth to Mrs. Dorothy Park Benjamin Caruso, one eighth to Mr. Giovanni Caruso, one-eighth to Mr. Rodolfo Caruso, one-eighth to Mr. Enrico Caruso, minor, and of the remaining four-eighths due to the minor, Gloria Caruso, to apply two-eighths without restrictions to Mrs. Dorothy Caruso, as mother, tutor and legal administratrix of the property of her minor daughter, Gloria Caruso, until her coming of age, and to deposit the other two-eighths in the Banco di Napoli, at its New Tork office in the name of Gloria Caruso with a pupilary restriction."

The attack made upon the validity of the proceedings in the Italian court, for lack of jurisdiction, is not a matter which can be properly entertained by us.

It is not denied that the Civil and Penal Tribunal of Naples is a court of general jurisdiction, and was invested with the powers such as were exercised by that tribunal in the matters relating to the intestate's estate; and the claim made, on behalf of the infant, by its guardian ad litem, is, in substance, that the Tribunal was without jurisdiction in the instant case, because the venue of the proceedings should have been laid within the territorial jurisdiction of the Civil and Penal Tribunal of Florence, and contending that that city was the last domicile of the intestate, which statement, however, is disputed. This obviously, was a matter for the Italian court to examine into and decide, if the question had been raised there, but, at any rate, is not for us to take notice of or to pass upon here.

There is nothing appearing in the record before us to indicate upon what theory letters of administration were granted to the widow, in the city of New York, for, if the family contract, which received the judicial sanction, and was embodied in the decree of the court of Naples, is to have legal force and effect, in those states wherever there was any property belonging to Caruso, subject to be distributed, the contract between the parties, sanctioned by that decree, and adopted therein, was a final judicial determination of how such property should be administered and distributed, without the intervention of an intermediary. Of course, if there was a creditor of Caruso's estate, and assets in New Jersey, by virtue of our statute, in the absence of administration having been applied for by those entitled thereto, within a period of time designated by the statute, a creditor could properly apply for letters of administration. But, according to the record in the case, there was no creditor in New Jersey, and no property belonging to the Caruso estate, except the usufruct arising from the Victor Talking Machine contract, and that was to be distributed among those entitled to share therein, according to the terms of apportionment stated in the contract, and as agreed upon by all the parties in interest, and ratified by the Naples Tribunal, and as set forth in its decree, and, hence, there was no basis for the appointment of the widow, because of the fact that she was administratrix of Caruso's estate in New York, administratrix here, with letters ancillary. This, however, may be a matter of minor importance in view of the final result reached by this court in the final disposition of the appeals heard and considered by us.

On February 25, 1927, the widow Caruso, as administratrix, filed her petition in the Court of Chancery, and, after setting forth that she was appointed ancillary administratrix by the Ordinary of the Prerogative Court, and that she had given bond in pursuance of such order for the sum of $250,000, and that she had received certain moneys from the estate of Enrico Caruso, as such administratrix, she prayed that her accounts as such may be settled, and that a decree be made for the distribution of moneys in her hands to the persons entitled thereto. She further set forth that the annual expenses of maintaining the household in the manner to which the infant Gloria is accustomed, including the moneys the petitioner has expended for the support and maintenance and education of Gloria, amount to about $30,500, and that she, as ancillary administratrix, be authorized to pay from the funds in her hands the sum of $30,500 per annum, to herself, as mother, guardian, and administratrix of Gloria, and to charge the same against Gloria's interest in the estate, etc....