Url's Estate, In re, A--23
Decision Date | 06 November 1950 |
Docket Number | No. A--23,A--23 |
Citation | 76 A.2d 249,5 N.J. 507 |
Parties | In re URL'S ESTATE. |
Court | New Jersey Supreme Court |
Ernest P. Biro, Irvington, and Milton Popper, Long Beach, N.Y., argued the cause for the appellant (Wolf, Popper, Ross & Wolf, New York City, on the brief).
James I. Bowers, Somerville, argued the cause for the respondent executor (Bowers, Rinehart & Murphy, attorneys).
Francis F. Welsh, Montclair, argued the cause for Brunetto & Welsh, attorneys for the intervening next of kin of John Url.
The opinion of the court was delivered by
Defendant appealed to the Appellate Division from a judgment entered in the Somerset County Court, Probate Division. We certified the cause on our own motion.
By his last will and testament John Url, deceased, devised and bequeathed his residuary estate for the benefit of an orphanage in the City of Szekesfehervar, Hungary.
The residuary clause of the will reads as follows:
On December 24, 1948, the first and final account of the executor of the estate was brought on for settlement and allowance before the Somerset County Court. The residuary legatee was represented by the attorney of the Acting Counsul General of the Hungarian Republic in New York City who was acting pursuant to a purported power of attorney executed and filed by Arva Haz. On January 28, 1949, judgment was entered allowing the executor's account, commissions and attorney's fees. That judgment ordered 'that the residue of said estate, after payment of the commissions and fees above set forth, is to be held by said executor and to be distributed by him in accordance with the last will and testament of the decedent, John Url.'
The executor did not pay over the residue of the estate to the Acting Consul General of the Hungarian Republic at New York but served notice on him of an application for a judgment upon his request for directions as to the distribution of the estate. This notice together with a complaint was filed April 6, 1949. In that complaint the executor alleged there remained in his hands for final distribution the sum of $52,297.47 and that 'there is grave doubt in his mind as to the existence of said Arva Haz of Szekesfehervar, the beneficiary entitled to the residue of the estate * * * and that there is a question as to the propriety of paying the said residuary estate in view of existing political and economical conditions in Hungary.' He asked that a judgment be entered determining the existence of said Arva Haz of Szekesfehervar and that the judgment direct him as to whether or not payment of the net estate should be made 'at this time'. An answer was filed on behalf of the Hungarian Acting Counsul General at New York and several hearings were had.
County Judge Arthur B. Smith determined there was a reasonable probability that if the funds were delivered to the Hungarian Acting Counsel General the legatee would not have the benefit or use or control thereof; that the Court doubted whether the orphange presently existed in fact in such manner as can be said it was the same institution which was the object of the testator's bounty; and that if payment was made to the Hungarian Acting Counsul General for transmission to the legatee a large part thereof would be confiscated and diverted to the use of the Hungarian Government. As a consequence he entered the judgment, which is the subject of this appeal, that the executor pay the residue of the estate, after payment of counsel fees and costs, to the Surrogate of Somerset County 'to be by him held for the benefit of such legatee, next of kin, beneficiary or such other person or persons who may hereafter be determined to be entitled thereto.' Other questions raised were reserved for determination at a time when adequate proof could be offered to warrant the court in making final disposition of the matter. In re Url's Estate, 7 N.J.Super 455, 71 A.2d 665 (1950).
The action of the court below was based on R.S. 3:26--18, N.J.S.A., which provides ...
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...with the federal practice, as well as our own, which permitted interlocutory appeals in Chancery but not at law. See In re Url's Estate, 5 N.J. 507, 512, 76 A.2d 249 (1950); Warren v. Hague, 11 N.J.Super. 311, 314, 78 A.2d 300 (App.Div.1951). They were careful to avoid any inflexible course......
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