Caruso v. Caruso

• Decision Date: 14 March 1928
• Citation: 141 A. 16
• Parties: CARUSO v. CARUSO et al.
• Court: New Jersey Court of Chancery

141 A. 16

CARUSO

v. CARUSO et al.

Court of Chancery of New Jersey.

March 14, 1928.

(Syllabus by the Court.)

Suit by Dorothy P. B. Caruso, special guardian of Gloria Caruso, a minor, against Rodolfo Caruso and others. On the guardian's petition for an allowance out of infant ward's estate for her maintenance and education according to her station in life. Allowance made.

John J. Treacy, of Jersey City, and Alfred F. Seligsberg, of New York City (James Barclay, of New York City, on the brief), for petitioner.

Martin V. Bergen and Marcel Viti, both of Philadelphia, Pa., for the guardian ad litem.

WALKER, Chancellor. Application having been made by Mrs. Dorothy P. B. Caruso for letters of guardianship of the estate of Gloria Caruso, her infant daughter, in the Prerogative Court of this state, after leave granted in this cause, and having been appointed by that court on January 24, 1928, special guardian of the said minor for the purpose of applying to the Court of Chancery for an allowance from her estate for her support, maintenance, and education according to her station in life, the question of the amount of bond to be given by the guardian was reserved until the court should have adjudicated the matter of allowance to be applied for. The authority for such appointment, and the facts of the case are fully set out in Re Caruso (N. J. Prerog.) 137 A. 154, and Caruso v. Caruso (N. J. Ch.) 139 A. 812.

In Caruso v. Caruso, supra, questions reserved until the guardian for Gloria might be appointed, were: (1) As to the validity, by comity, of the Italian decree; (2) the amount, if any, to be awarded for Gloria according to her station in life; and (3) what is principal and what income, under the contract between the late Enrico Caruso and the Victor Talking Machine Company. These questions are therefore now ripe for decision.

First. As to the validity in New Jersey, by comity, of the Italian decree.

Assuming that this decree, and amendments, made in Italy upon the application of the Caruso heirs (named in his testamentary paper filed there), who were all present before the court and who had entered into a family agreement or settlement which the court approved, operated by its terms on all the parties, nevertheless an interested party was the infant daughter of Enrico Caruso, and of his wife, Dorothy P. B. Caruso, the petitioner herein, who (the infant) appeared by a guardian appointed by the Italian court and consented to its decree; but, in this state, as will hereinafter appear, an infant may neither consent herself, nor her guardian for her, to any substantive principle affecting her rights, and therefore the Italian decree cannot operate to defeat the right of Gloria to her interest in the property of her father in this state, which is subject to the jurisdiction of our courts—even assuming the validity of the Italian decree for other purposes in this state, and which it therefore is unnecessary to decide.

It will be observed that the Italian decree undertakes to deal with the property of the late Mr. Caruso arising out of his contract with the Victor Talking Machine Company, and which is the subject of the controversy in this cause.

After dividing certain property of the decedent to the consenting heirs, including the Infant Gloria, it proceeds to adjudge division of the residue, as follows: One-half to decedent's daughter, Gloria; the other one-half, one-quarter to Mrs. Caruso, widow; one-quarter to Rodolfo Caruso (natural, though recognized, son); one-quarter to Enrico Caruso (natural, though recognized son); and one-quarter to Giovanni Caruso, brother That makes one-eighth each to the last four. The decree also provides, among other things, as follows:

"Art. 2. In virtue of the amicable and good-natured arrangement interceded among the constituted heirs and ratified by the Tribunal of Naples, thanks to deliberation of October 21, 1921, First Section, which in the full her contents is accepted by all the constituted parties and herewith inclosed a copy, the patrimony of the defunct Commander Enrico Caruso, son of the late Marcellino, is distributed as follows:

"One half to the legitimate daughter, Gloria, besides special allowance of the capital of lire 500,000, as in narration, and the collections; the other half, always in full property, for one-fourth to Mrs. Dorothy Benjamin, Caruso's widow, another fourth to Mr. Rodolfo Caruso, another fourth to the minor Enrico Caruso (now of age), and the last fourth part to Mr. Giovanni Caruso, son of the late Marcellino, defunct man's brother german.

"Art. 3. From the patrimony of the regretted Commander Enrico Caruso, ascertained through the inventories in narration, accepted from the heirs in their contest and in all the declaration therein contained, ascertained also through the sworn verification, herewith inclosed, before proceeding to the formation and attribution of the quotas, are made, as said in narration, the following previous deductions to put aside:

"(1) The copyrights correspond with the reward of 10 per cent, by the respectable Victor Talking Machine Company on the sale of the disks for grammophone performed by Commander Enrico Caruso, which reward shall be in the future divided and attributed to all the heirs in proportion of their quotas."

The decree, predicated on the settlement, gives one-half to the infant and makes the mother guardian, with right to appropriate the infant's share to herself without accounting, while our law gives the mother only one-third and the daughter two-thirds, and requires the mother, as guardian, to account.

The Supreme Court of the United States in Black v. Zacharie & Co., 3 How. 483, 513, 11 L. Ed. 690, 704, held:

"It is well settled as a doctrine of international jurisprudence, that personal property has no locality, and that the law of the owner's domicile is to determine the validity of the transfer or alienation thereof, unless there is some positive or customary law of the country where it is found to the contrary."

In London, etc., Bank v. Aronstein, 117 F. 601, the Circuit Court of Appeals of the Ninth Circuit, said, at p. 608:

"Recognition of its [the corporation's] existence in other states, and enforcement of its contracts made therein, rest upon comity, and not upon inherent right. "Under this comity California extends to foreign corporations the privilege of exercising the powers conferred by their charters beyond the limits of the country wherein they have their origin and existence. The only restriction on this rule of comity is that in giving effect to the foreign laws the state has properly taken the precaution to prescribe regulations and impose certain conditions, in order that no wrong, injury, or injustice may be done to its own citizens, and to see that the policy of its own laws is in no way contravened or impaired."

No citizen is here appealing for protection, but our own local law is to be vindicated.

In Freeman on Judgments (5th ed.) § 1484, p. 3048, it is laid down:

"The courts of one nation have no authority over persons resident, or immovable property situate within the territorial limits of another nation, unless founded upon the voluntary submission of such persons to the jurisdiction of the foreign courts."

That, of course, means persons sui juris.

And it has been held in this state that while the rights of infants are not superior to those of adults, the difference between the two classes of persons is that the rights of infants must be protected by the court, while adults must protect their own. In re Shreve, 87 N. J. Eq. 7, 103 A. 683, affirmed Id., 87 N. J. Eq. 710, 103 A. 683; for the reasons given by the Chancellor. And this court held in Caruso v. Caruso, supra, that nothing can be taken as admitted against an infant, either by his default or on the answer of his guardian; and that it is the rule that a next friend or guardian cannot, by admissions or stipulations, surrender the rights of an infant. And this court held that minors cannot make an election themselves, and a guardian is without authority to make it for them. Brengel v. O'Toole (N. J. Ch.) 140 A. 28.

It therefore appears that the rights of the infant Gloria were not concluded by the Italian decree, and this application of her guardian lies in her behalf.

Second. As to the amount, if any, to be awarded to Gloria's guardian for her support, maintenance, and education according to her station in life.

The last duty of parents to their children is that of giving them an education suitable to their station in life, a duty pointed out by reason and of far the greatest importance of any. 1 Bl. Com. *451. As a rule, a widow is not bound to support her minor children out of her own property if they have means, and she is entitled to a complete indemnity out of their estate for the money expended by her for their maintenance within proper limits. Pyatt v. Pyatt, 46 N. J. Eq. 285, 287, 18 A. 1048. See, also, Caruso v. Caruso, supra. And it has already been held in this court that the instant case is not an ordinary one, requiring the guardian to make the allowance in the first instance, relying upon the court afterwards to pass the account, but is an extraordinary one, and this court may, in its discretion, authorize the guardian, in advance, as to how much of the estate of the ward may be expended for her benefit; assuming that such authorization be made. Caruso v. Caruso, supra.

It is, of course, one of the first and highest duties of a guardian to provide for the maintenance and education of his wards in manner befitting their condition in life, limited, of course, by the means at his command available for the purpose. Re Adkins, 33 Ont. L. 110.

Necessaries, it is stated, consist of food, drink, clothing, washing, medical attention, and a suitable place of residence, and they may be regarded as necessaries in the absolute sense of the word. However, the liability for necessaries is not...