Caruso v. Caruso

• Decision Date: 15 December 1927
• Citation: 139 A. 812
• Parties: CARUSO v. CARUSO et al.
• Court: New Jersey Court of Chancery

139 A. 812

CARUSO

v. CARUSO et al.

Court of Chancery of New Jersey.

Dec. 15, 1927.

(Syllabus by the Court.)

Suit by Dorothy P. B. Caruso against Rodolfo Caruso and others to settle complainant's accounts as ancillary administratrix of the estate of Enrico Caruso, deceased, for distribution and for discharge as such administratrix. On petition by the complainant for an allowance for the support, maintenance, and education of Gloria Caruso, deceased's minor daughter. Complainant given permission to apply to the Prerogative Court for appointment as special guardian of the estate of Gloria Caruso, to enable her to apply for an allowance therefrom for support, maintenance, and education.

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., opposed.

WALKER, Chancellor. Dorothy P. B. Caruso, widow of Enrico Caruso, deceased, filed her bill of complaint herein, in which she set out that Enrico Caruso died in the city of Naples, kingdom of Italy, on August 2, 1921, being a resident and citizen of such kingdom at the time of his death, leaving him surviving his only next of kin and heirs at law, the complainant, his widow, and infant daughter, Gloria Caruso, then 4 years of age (the daughter being the lawful child of the said Enrico Caruso and complainant, Dorothy P. B. Caruso), and two sons, Rodolfo Caruso, of full age, and Enrico Caruso, Jr. (the latter being then of the age of 20 years and upwards and being emancipated for the purpose of transacting business arid managing his estate under the Italian law), and also a brother Giovanni, also of full age; that said sons, Rodolfo and Enrico, were natural sons, born to Enrico Caruso by another mother than complainant, but were recognized by the deceased as his children during his lifetime; that such sons and brother all then resided at Naples, Italy, being citizens of the kingdom of Italy; that Enrico Caruso left a testamentary document, bearing date January 4, 1919, a true copy of which in the Italian language and a translation into English are annexed to the bill of complaint.

By the translated document it appears that he provides that his sons, Rodolfo and Enrico, and his brother, Giovanni, should be his universal heirs, and gave to his wife, Dorothy, the part which the Italian law grants to her, and provided, until her death, for his stepmother, Maria Castaldi. Such document was made prior to the birth of decedent's lawful daughter, Gloria, and makes no provision for her or any after-born children. Upon the death of Enrico Caruso, questions arose under the Italian law as to the extent to which decedent's lawful daughter, Gloria Caruso, being born subsequent to the making of such testamentary document, was entitled to share in decedent's estate, and whether such estate should be distributed as in case of complete intestacy or as controlled by such testamentary document in all other respects except as to the interests of the daughter, Gloria, and the latter determined as though in case of intestacy; and such proceedings were thereafter had in the Italian courts to obtain jurisdiction in the premises as resulted in the appointment of a special guardian of the infant Gloria (complainant being under the Italian law the general guardian of said infant), and the appointment of a general guardian for Enrico Caruso, Jr.; and thereafter Amedeo Canessa, special guardian for the infant Gloria, and Manlio Tizzani, general guardian for the infant Enrico Caruso, Jr., and all other parties in interest, entered into an agreement for a family settlement of the estate of said Enrico Caruso of all questions and controversies which might arise with respect thereto; and division of said estate, in substance, was made, agreed upon, and approved by the Italian court. The bill prayed for the settlement of the accounts of Mrs. Caruso, an ancillary administratrix appointed by the Prerogative Court of this state, for distribution to those entitled thereto (the persons named in the Italian judgment), and that she may be discharged as such administratrix, etc.

Messrs. McDermott, Enright & Carpenter signed the bill as solicitors and of counsel with complainant.

Thereafter, the clerk of this court was appointed guardian ad litem for Gloria Caruso, and Norman Grey, Esq., was assigned by the court as his solicitor and counsel. Air. Grey died, and afterwards Alartin V. Bergen, Esq., was appointed in his place and stead. An answer and an amended answer have been filed for Gloria Caruso, the infant defendant, by her guardian ad litem, through counsel. An answer has been filed by the clerk of this court, guardian ad litem for Enrico Caruso, Jr. As he is now of age, he may be represented by counsel of his own choice. See Moore v. Aloore, 74 N. J. Eq. 733, 70 A. 684. The Victor Talking Alachine Company has also filed an answer and a counterclaim to the bill of complaint.

Afterwards the complainant herein, Dorothy P. B. Caruso, filed a petition in this court, setting forth, among other things, that she filed her complaint in this court setting forth that she received certain moneys of the estate of Enrico Caruso as ancillary administratrix, and prayed that her accounts as such might be settled and a decree made for the distribution of moneys in her hands to the persons entitled thereto, and for other relief as therein set forth; that Gloria Caruso, infant defendant in said proceeding, made answer by the clerk of this court, her guardian ad litem, contesting the proposed distribution of the funds in the hands of the petitioner as such ancillary administratrix, and claiming, among other things, that the entire principal of the estate in New Jersey may be decreed to be the property of said Gloria Caruso, as sole distributee, subject to the proportion of income to which her mother, the petitioner, is entitled in her lifetime; that the issues made by the complainant, and the litigious (amended) answer mentioned have not yet been disposed of or settled; that the beforementioned settlement was arrived at, and that the agreement therefor was confirmed and approved by decree of the Civil and Penal Tribunal of the city of Naples, dated October 21, 1921, and decree of the same court on June 16, 1922; that the issues raised in the case are pending—and asks for allowance out of the estate of Enrico Caruso in New Jersey an annual amount for the support, maintenance, and education of the infant, Gloria Caruso, as she is accustomed and is entitled to enjoy.

This petition was signed by John J. Treacy, Esq., as solicitor for complainant. On it is a notice directed to Alartin V. Bergen, Esq., solicitor of the guardian ad litem for Gloria Caruso, and to McDermott, Enright & Carpenter, Esqs., solicitors of complainant, ancillary administratrix, notifying them that on a certain day, at the Chancery chambers, state house, Trenton, the solicitor for the petitioner would apply to the Chancellor for an order in accordance with the prayer of the said petition. Service of the petition and notice was acknowledged by Air. Bergen, and by Messrs. AlcDermott, Enright & Carpenter. The filing of the lastmentioned petition in this case was irregular.

The doctrine of retaining jurisdiction to settle the entire controversy is confined to the determination of rights dependent upon, or at least germane to, the subject-matter and main purpose of the bill. Jurisdiction will not be retained to adjust independent controversies between the parties or controversies beyond the scope of that raised by the bill. 21 C. J. 148. We are not without decisions bearing on that question in this state.

In Shaw v. G. E. Beaumont Co., 88 N. J. Eq. 333, 102 A. 151, 2 A. L. R. 122, it is held that it is not an inflexible rule that, when the Court of Chancery, having once acquired jurisdiction for one purpose, is bound to retain the case for complete relief; whether the court will do so, so as to include all the points in controversy between the parties, rests somewhat in the discretion of the Chancellor. The rule applied in this ease, where the Court of Chancery, under an agreement, had jurisdiction to make an accounting, excluded therefrom items under two former agreements, which were cognizable at law; and this was held proper by the Court of Errors and Appeals. It has been laid down in this court that amendments must be germane —that is, akin or closely allied—to the pleading amended, and, while they are allowed in equity with great liberality, the doctrine has not been extended so far as to permit the substitution of an entirely different case from that made in the original bill or petition. Foder v. Kunie, 92 N. J. Eq. 301, 304, 112 A. 598. This illustrates the principle. I lay out of view complainant appearing as petitioner in the same cause by different solicitors of record. See In re Stewart, 85 N. J. Eq. 3, 95 A. 739, also, State v. Merra, 99 N. J. Eq. 480, 134 A. 558, on the subject of solicitors of record, generally.

Now, as shown, the bill in this case was for the settling of the accounts of the complainant as administratrix and for a decree of distribution to the persons entitled thereto, etc. What possible relation that has to the question presented by the petition, namely, the payment to Mrs. Caruso from the estate of the infant defendant Gloria of an allowance out of the estate of Enrico Caruso in New Jersey, for the support, maintenance, and education of Gloria according to her station in life, is not perceived. Therefore it is not germane, and therefore, in strictness, would have to be the subject of an independent and original bill of complaint. The case made by the bill in this case has peculiar features and prays, among other things, for the decision of certain equitable questions arising under the agreement of the late Enrico Caruso with the Victor Talking Machine Company, and the...