Url's Estate, In re

• Decision Date: 14 February 1950
• Docket Number: No. 19764,19764
• Citation: 71 A.2d 665,7 N.J.Super. 455
• Parties: In re URL'S ESTATE.
• Court: New Jersey County Court. New Jersey County Court — Probate Division

Page 455

7 N.J.Super. 455

71 A.2d 665

In re URL'S ESTATE.

No. 19764.

Somerset County Court Probate Division, New Jersey.

Feb. 14, 1950.

Bowers & Rinehart, Somerville, by James I. Bowers, Somerville, for the plaintiff executor.

Ernest P. Biro, Irvington, for Dr. Lajos Kadar, Acting Consul General of the Hungarian Republic, as attorney in fact for Arva Haz of Szekesfehervar, Szekesfehervar, Hungary.

Brunetto & Welsh, Montclair, by Francis F. Welsh, Montchair, for Julia Url Tordai, Sandor Url, Maria Url and Gyorgy Url.

ARTHUR B. SMITH, J.C.C.

On December 24, 1948 the first and final account of Alfred C. B. McNevin, executor under the last will and testament of John Url, deceased, was brought on for settlement and allowance before this Court. The matter was continued to January 14, 1949 at the request and with the consent of the attorney for the executor and the attorney for the Acting Consul General of the Hungarian Republic in New York City, who was acting pursuant to a power of attorney executed and filed on behalf of Arva Haz of Szekesfehervar, Szekesfehervar, Hungary, designated as the residuary legatee under the will of the decedent. On the latter date, it appeared that there was no dispute with respect to the accuracy of the executor's account and no exceptions thereto were filed. The only matter then appearing to be in dispute was the question of the counsel fee to be allowed to the attorney for the executor and the amount of commissions to be allowed to the executor. The Court indicated that the account would be allowed as filed; that the executor would be allowed commissions at the rate of five per cent, but reserved decision on the question of counsel fees to be allowed to the attorney for the executor until a memorandum with respect thereto should be filed with the Court. Subsequently, on January 28, 1949, there was presented to the Court a form of judgment allowing the executor's account, the executor's commissions and allowing to the attorney for the executor a counsel fee of $7,000. The making and entry of the judgment and the allowance of the executor's commissions and counsel fees to the executor's attorney were consented to by the attorney appearing for the residuary legatee and the judgment was thereupon signed and entered.

The judgment allowing the account, among other things, 'Ordered that the residue of said estate, after the 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 thereafter apparently chose to wait until the expiration of the time for appeal from the judgment of this Court before attempting to make distribution of the residue of the estate in accordance with the provisions of the testator's will and, while so waiting, became concerned as to whether or not, under existing conditions, he would be justified, and be properly discharging his duty, by paying over the residue of the estate remaining in his hands to the Acting Consul General of the Hungarian Republic at New York City by virtue of the power of attorney above mentiond. On April 5, 1949 the attorney for the Hungarian Acting Consul General at New York acknowledged service of a notice from the attorney for the executor to the effect that the executor would, on April 22, 1949, make application to this Court for a judgment upon the executor's request for directions as to the distribution of the estate. This notice and the executor's complaint were both filed with the Surrogate on April 6, 1949. In his complaint the executor, among other things, alleged that there remained in his hands for final distribution the sum of $52,297.47, all in cash deposited to his credit in the Empire Trust Company, New York City, N.Y. He further alleged '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 of said John Url, deceased, 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 respectfully demanded that a judgment be entered 'determining the existence of said Arva Haz of Szekesfehervar, beneficiary under the last will and testament of said John Url, deceased, and that said judgment further direct the plaintiff as to whether or not payment of the net estate should at this time be made to said beneficiary, its agent, attorney or representatives'. On behalf of the Hungarian Acting Consul General at New York, there was filed an answer to the executor's complaint denying that there were 'any grounds in law or otherwise which should give to the executor any doubts as to the existence of said Arva Haz of Szekesfehervar * * * because the said executor has been shown an official certificate under the signature and seal of the Mayor of Szekesfehervar and under the signature and seal of the Bishop of Szekesfehervar, both charged with the duty of the conduct and management of said orphanage, certifying that the said orphanage exists and functions unchanged and that nothing will hinder the appropriate use of the funds left for the benefit of the said orphanage'. The answer further alleged that 'the said Bishop and the said Mayor have declared under oath that the funds so received by them will be used exclusively for the maintenance and education of the orphans of said orphanage and that the said bequest will remain the property of the orphanage and will not be confiscated by the State'. Hearing and consideration of the executor's application for instructions was continued from the date for which notice was originally given to May 6, 1949. On this date there appeared in Court not only the executor and his attorney and the attorney for the Hungarian Acting Consul General at New York, but also Francis F. Welsh, Esquire, of the firm of Brunetto & Welsh, members of the Bar of this State, who at that time claimed to be appearing for certain next of kin of the testator, whose names he did not then wish to divulge for fear of possible retaliation against them for daring to urge a claim in opposition to that contended for on behalf of the present Hungarian governmental officials. It will be recalled that this was shortly after the much publicized arrest and alleged trial of Cardinal Mindszenty and other religious leaders, and the efforts to subordinate the will and teachings of the religious leaders to the will of those then in positions of governmental authority, in territory occupied or under the domination of the forces of the Union of Soviet Socialist Republics. By virtue of what had become matters of public knowledge through information released to the Press through the State Department of our own government, this Court was at that time unwilling to assume, without adequate proof independently obtained, that the orphanage which was the object of the testator's bounty as expressed in the residuary clause of his will was in fact still in existence, or, if it was, that the monies which it was entitled to receive from the executor of the above named estate would, if paid over by the executor to the Hungarian Acting Consul General at New York, reach the orphanage without confiscation or substantial diminution, or that it would be permitted to be used by the orphanage for its customary purposes as when it was known by the testator and as the testator undoubtedly assumed when making his will. It might be well to here quote the residuary clause of the will: 'Fourteenth: All the rest residue and remainder of my estate, both real, personal and mixed, wheresoever situate, including all lapsed legacies, I hereby give devise and bequeath for the benefit of Arva Haz of Szekesfehervar in the City of Szekesfehervar, Hungary, under the joint control of the city administration and the Roman Catholic Bishop of Szekesferhervar, no portion of either principal or interest to be used for any other than the designated purpose. This bequest is made in remembrance of the good deeds done in the past for the orphan boys and girls by the City of Szekesfehervar'.

After hearing the arguments of counsel, this Court announced that the matter would be taken under advisement and that an effort would be made by the Court to obtain the cooperation and assistance of the Department of State of our Federal Government in an effort to ascertain whether the orphanage continued to exist at this time and, if so, whether the funds, if paid over by the executor to the Hungarian Acting Consul General at New York, would not be confiscated; would reach the orphanage without substantial diminution, and be permitted to be used by the orphanage for the accomplishment of the purposes apparently intended by the testator. The matter was, therefore, continued without specific date. The assistance of the Department of State of the United States was promptly sought by the Court and, at the Court's request, the matter was referred to the American Legation at Budapest, Hungary, with the request that discreet inquiries be made concerning the existence of the orphanage. Under date of June 7, 1949 the Department of State forwarded to this Court a report of the investigation made through the American Legation at Budapest to ascertain the present status of the orphanage. This report was based upon interviews at Szekesfehervar and a visit at the orphanage by a member of the Legation Staff. The report stated among other things:

The institution (orphanage) has been nationalized for the past four months and a woman by the name of Mrs. Stephen Gyimoti was appointed head of the orphanage. The institution was previously managed by twelve Catholic nuns who, according to Mrs. Gyimoti, were 'misusing funds' and were forced to resign, under the nationalization law. Mrs. Gyimoti stated that 'horrible social conditions' in Hungary in the past made her become an...