Matter of Zietz

• Decision Date: 12 November 1954
• Citation: 207 Misc. 22
• Parties: In the Matter of The Estate of Hugo Zietz, Sr., Deceased.<BR>In the Matter of The Estate of Hedwig Zietz, Deceased.<BR>In the Matter of The Estate of Hugo Zietz, Jr., Deceased.
• Court: New York Surrogate Court

207 Misc. 22

In the Matter of The Estate of Hugo Zietz, Sr., Deceased.

In the Matter of The Estate of Hedwig Zietz, Deceased.

In the Matter of The Estate of Hugo Zietz, Jr., Deceased.

November 12, 1954.

Otto C. Sommerich and Benjamin Busch for Willy Zietz, petitioner.

Paul Simon, Milton W. Levy and Jacob Oliner for Madeleine Zietz-Halmos, respondent.

FRANKENTHALER, S.

Hugo Zietz, Sr. died in 1927, a resident of Germany. He was survived by his wife Hedwig and two sons, Willy and Hugo, Jr. The latter son died without issue in 1934 and Mrs. Zietz died in 1945. This court has appointed Willy Zietz, the surviving member of this family, administrator c.t.a. of his father's estate, administrator of his mother's estate and administrator of his brother's estate. He petitions in this proceeding for authorization to deliver the assets in this jurisdiction of the three estates to himself as sole owner. He alleges that all such assets derived from the estate of Hugo Zietz, Sr., whose will granted his widow a life tenancy with remainder to his sons and that petitioner, as the sole surviving son, is entitled to the full remainder. Petitioner alleges further, in support of his assertion of sole ownership of the family assets, that Madeleine Zietz-Halmos, the wife of Hugo Zietz, Jr., divorced him in Germany in 1927, that some years after his death she instituted proceedings in Switzerland in which she asserted an interest in the estate of Hugo Zietz, Jr., as his widow and heir and that judgments were rendered determining that she was not the widow of Hugo Zietz, Jr., and that she had no claim against his estate or the estate of his father.

Mrs. Zietz-Halmos has moved in these proceedings for leave to intervene and to answer the petitions. Her proposed answers allege that she is the widow of Hugo Zietz, Jr., that the German divorce decree was invalid and that the proceedings in Switzerland were not res judicata upon the issues before this court. This court ruled that proof would be taken upon the issue of res judicata and the issue as to the validity of the divorce decree (Matter of Zietz, 121 N. Y. S. 2d 866). Later the court granted petitioner's motion for a preliminary trial of the separate issue of res judicata. Proof upon that single issue has been received and the same proof constitutes the record in each of the three proceedings. The question before the court at this point in the proceedings is whether judgments of Swiss courts bar the movant from asserting the contentions pleaded in her proposed answers.

The litigation in Switzerland began with the institution of an action by Madeleine Zietz-Halmos against Hedwig Zietz in the Municipal Court, Meilen. A judgment was rendered in that action on February 15, 1940, which recites that plaintiff sought (1) the ascertainment of her inheritance claim in the estate of Hugo Zietz, Jr., (2) surrender by defendant of plaintiff's inheritance share with interest, (3) payment by defendant of support due plaintiff from her husband up to his death, (4) payment of damages by defendant for impairment of plaintiff's health by the conduct of defendant's son and (5) payment by defendant of damages suffered by plaintiff by reason of the dissolution of her marriage through an invalid divorce. The judgment states plaintiff's allegations to have been that the German divorce procured by her from her husband was not entitled to recognition in Switzerland because it was not rendered in conformity with the law of Argentina, the country of the nationality of the parties to the marriage, and because such country would not recognize the divorce under its law. The judgment found that plaintiff had not proved that the divorce decree would not be recognized in Argentina, found that the decree was entitled to recognition in Switzerland and, for these reasons, found that plaintiff was not the heir of her former husband and was not entitled to sue for the inheritance. The court also found that defendant could not be sued for support which not even the former husband owed plaintiff under the terms of the divorce decree and the court dismissed plaintiff's prayer for that relief. The court further found that plaintiff's claim for damages for impairment of her health was outlawed and the claim for damages for dissolution of the marriage not only lacked a basis but failed in view of the validity of the divorce. The ultimate disposition was the dismissal of the complaint in its entirety, with costs. An appeal was taken to the Superior Court of the Federal Canton of Zurich which held the appeal to be without merit and assessed costs against the appellant. The judgment on that appeal shows the issues to have been the jurisdiction of the divorce court, the inheritance rights of the appellant, the liability of Mrs. Hedwig Zietz for alimony and damages and the charges of fraud and duress against her. An appeal then was taken to the Supreme Court of Appeal of the Canton of Zurich which dismissed the application to annul the judgment of the lower appellate court. An appeal to the Bundesgericht, Division for Constitutional Matters, was dismissed. A further appeal to the Swiss Federal Court was dismissed and the judgment of the Superior Court was confirmed. An application for review of this determination was denied by the Federal Supreme Court of Switzerland. Subsequent to the death of Mrs. Hedwig Zietz the plaintiff petitioned the Swiss Federal Court for a reopening of the proceedings. Her petition stated that Mrs. Zietz had died in 1945, and her son Willy Zietz had accepted the inheritance and had appeared in the reconsideration proceeding. The application to reopen was denied. In May, 1954, the Superior Court of the Canton of Zurich denied an application for revision of its judgment. Such denial was on the ground that the appellant had not paid "the security for the proceedings". In the application for revision Madeleine Zietz-Halmos was the appellant and Willy Zietz "as inheritor of Mrs. Hedwig Zietz" was the respondent.

It is the contention of petitioner Willy Zietz that these judgments of the Swiss courts determined the identical issues that Mrs. Zietz-Halmos seeks to litigate in these proceedings, that privity exists between the litigants in the Swiss courts and the parties herein and, consequently, the rule of res judicata bars the movant from relitigating the issues in the present proceedings. While the movant attacks her divorce upon the same grounds that she pleaded in Switzerland, she contends that the issues in the Swiss courts were not the issues that she seeks opportunity to plead here. She argues that in the Swiss courts her claim was asserted as the heir of Hugo Zietz, Jr. and necessarily any adjudication by those courts was limited to her status as heir of her husband and did not concern the estate of his father, while in the instant proceedings her claim is against the estate of the father. However, the allegations of her proposed answer are that as widow of Hugo Zietz, Jr., she has a substantial interest in the assets of his estate which in turn has a substantial interest in the assets of the estate of Hugo Zietz, Sr., and that she, as widow of Hugo Zietz, Jr., has a substantial interest in the estate of Zietz, Sr. Inasmuch as the claim of the movant to an interest in both of these estates is based entirely on her status as the widow of Hugo Zietz, Jr., the primary issue in these proceedings must be whether or not she is the widow. That issue was litigated in Switzerland.

The movant also argues that the Swiss judgments are most restricted in effect and she suggests that this court's consideration of the judgments must be limited to the ultimate dispositive provision, that is, the dismissal of the complaint. She urges that this court regard the dismissal of the complaint as an unexplainable fact. The authorities are wholly to the contrary. The effect of a judgment, as an adjudication conclusive upon the parties, is to be determined "upon an examination of the issues made and intended to be submitted, and which it was intended to decide. Vicksburg v. Henson, 231 U. S. 259, 272, 273; United Shoe Mach. Corp. v. United States, 258 U. S. 451, 460." (Oklahoma v. Texas, 272 U. S. 21, 42-43.) In Reich v. Cochran (151 N.Y. 122, 127-128), the court accepted the general rule to be that stated in Pray v. Hegeman (98 N.Y. 351) in the following language: "`The general rule is well settled that the estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. It is not necessary to the conclusiveness of a former judgment that issue should have been taken upon the precise point controverted in the second action. Whatever is necessarily implied in the former decision is, for the purpose of the estoppel, deemed to have been actually decided.'" The rule appears to be no different in Switzerland. Section 104 of the Zurich Code of Civil Procedure provides: "The judge shall be bound by the findings of a judgment in a later litigation between the same parties or their legal successors insofar as these findings are contained in the disposition of the court." Ruling upon a plea of res judicata in a case where the particular question was whether or not the subject matter of prior litigation was identical with that presented in the case then at bar, the Swiss Federal Court said: "Now, it is, however, true that the contents of the reasonings of the judgment do not participate in the final force; that means that the final force does not extend to the findings of fact and conclusions of law which the court used to justify the judgment. On the other hand, the final force of the judgment cannot be gathered only from the formula of the decision. Rather, one must...