[8 NJSuper Page 601] On June 1, 1933, Max Gluck, a resident of and domiciled in Scranton, Pennsylvania, opened a savings account with the plaintiff, depositing the sum of $12,824.13, in the name of "Max Gluck, Trustee for Charity Fund of Village Koniuchy, Poland." No withdrawals from or additions to the account were made, except the accumulation of interest. When the account was opened, the village of Koniuchy was located in the Republic of Poland, but it is now within the borders of the Union of Soviet Socialist Republics. Gluck died on March 3, 1940. His will dated May 6, 1939, and three codicils thereto dated September 26, 1939, October 23, 1939, and November 21, 1939, respectively, were admitted to probate by the Register of Wills of Lackawanna County, Pennsylvania, and letters testamentary thereon were issued to the defendants, Susan Baronych and Stephen Baronych, who in the will were referred to as "administrators." The bank account was opened almost six years prior to the execution of the will. The will mentioned that the testator had cash on deposit in the plaintiff bank, but made no specific reference to the account. In the first codicil dated September 26, 1939, however, Gluck specifically referred to the account, stating "I am leaving fund after my death for my birth Village of Koniuchy, County of Berezani, Poland, Fund of the Poor," and he appointed his executors as "Administrators of this Fund." And, "In order that this fund may be distributed in accordance with my wishes, I hereby nominate an Assistance Committee of the Koniuchy people as follows: Controller Timko Nazar, * * * Thomas Urmanec, * * *
John Melish." He provided that if any of the aforesaid "Assistance Committee" should die, the "administrators" should nominate someone to serve in his stead. The codicil provided further "Controller Timko Nazar will keep in his possession until the fund will last."
In the last codicil dated November 21, 1939, Gluck provided, inter alia:
"The following are the further desires of my Will which Stephen and Susan Baronych are to carry out after my death:
"1. I am leaving the sum of $15,601.63, without interest, to the Village of my birth, Koniuchy, Poland, for charitable purposes; and from this charitable fund, there shall be paid Ten ($10.00) Dollars apiece to the poor per year, as long as this fund lasts; all expenses to be incurred in the administration of these trusts are to be charged against this fund, and to this matter, I have appointed from the Village of Koniuchy, a Committee, namely, Timko Nazar, Scranton, Pa., Thomas Urmanec, Scranton, Pa., and Joseph Melish, 52 Lowland Drive, Buffalo, New York.
"The Town of Koniuchy is today under Russian occupation and should circumstances prevent the people of Koniuchy from enjoying the benefits of this fund, then in that case it is to be used here in America for the welfare of the poor. * * *"
The plaintiff filed this proceeding for instructions regarding the distribution of the fund. The defendants are: -- Susan Baronych and Stephen Baronych, executors under the will and codicils of the decedent and testamentary trustees under the alleged trust created by Gluck; the Chief of the Consular Division of the Union of Soviet Socialist Republics who has filed an answer on behalf of the Village of Koniuchy; and the Attorney General of the State of New Jersey because of a possible public interest in the charitable trust.
The attorneys for the executors of the estate and the attorneys appearing on behalf of the Village of Koniuchy both urge that no valid inter vivos trust exists. The former claim that the fund should be turned over to the defendant executors as an asset of the estate. The attorneys for the Village contend that a valid testamentary trust was created for the benefit of the poor of the Village of Koniuchy and that the fund being in this State should be administered here or deposited
in court and its distribution by the testamentary trustees supervised, because they are not residents of New Jersey.
At the time the account was established in 1933, R.S. 17:9-4 was in effect, but this statute was repealed by Chapter 67 of the Laws of 1948, Article 46, Section 336, page 413, and in its stead, Section 216 of Article 35 of Chapter 67, page 350, was enacted. This latter section was amended by the Laws of 1949, Chapter 286, Section 216, page 880, R.S. 17:9A-216, paragraph E of which expressly provides that "Funds heretofore or hereafter deposited to the credit of an account opened prior to the effective date of this act in the name of an individual depositor as trustee or in trust for a named beneficiary shall be ...