Decedent was a citizen of the United States, domiciled in Jersey City, where he died November 24, 1940. He left a will (herein called the New Jersey will), dated May 5, 1937, which was admitted to probate by the Surrogate of Hudson County on December 6, 1940. At the time of his death he was the owner of property, real and personal, part of it situate in New Jersey and part in Italy. For reasons of no present concern the Italian assets did not come into the executors' hands. As of record in this court, the estate has been entirely administered and distributed.
The plaintiff, Angela DiPersia Ciruzzi, a sister of decedent, now offers for probate, pursuant to R.S. 3:2-46 what purports to be a duly authenticated copy of a subsequent will made and executed by decedent on April 22, 1938, at Stigliano, Italy, and herein called the Italian will. The latter document, now alleged to be decedent's last will and testament, has already been admitted to probate at Stigliano in accordance with Italian law. Plaintiff contends that the Italian will annuls the New Jersey will, and demands judgment against defendants, who are the New Jersey executors, (a) admitting the Italian will to probate, per photostatic copy
in accordance with the statute, supra; (b) vacating the letters testamentary issued to defendants by the Surrogate of Hudson County; and (c) directing that letters of administration with the will annexed be granted to the Italian Vice-Consul at New York or to some other fit and proper person. The cause is submitted for the court's decision on stipulated facts.
Included in the stipulation are two separate transcripts of the minutes of proceedings had in Italy respecting the Italian will and each embodying a transcript of the will itself. I mention these in the chronological order of their reference, though they appear in the reverse order in the stipulation. One of the transcripts, which I shall call the delivery minutes (designated Schedule "P" in the stipulation), relates in part to a phase of Italian testamentary procedure wherein a sealed will is deposited by the testator with a designated public functionary titled a notary, for its custody and preservation by the notary against the event of testator's death and the taking effect of the will. The minutes describing this procedure appear in the transcript as Exhibit "B." Exhibit "C" therein is a copy of the Italian will.
The other transcript (Schedule "B" in the Stipulation), which I shall call the publication minutes, relates to a phase of Italian testamentary procedure wherein, after testator's death, the notary's custody of the will is formally terminated at the instance of one called the "requesting party" and the will is examined and published. To every practical intent this procedure is equivalent to what is known in our own practice as probate. For further clarity it should be stated that the delivery transcript includes the minutes of publication as well, while the other contains the minutes of publication only. I make separate mention of these two items of the stipulation because of their separate places in the factual narrative, as will presently appear.
On February 17, 1941, one of the defendant executors, during the progress of the New Jersey administration, received from a kinsman of decedent in Italy a letter advising of the existence of the Italian will. It appears that thereupon counsel
to the executors promptly sought and obtained a duly authenticated copy of the Italian will. The form in which this came to him is the transcript of the publication minutes (Schedule "B" in the Stipulation). From the copy of the Italian will embodied therein the will was ascertained to be devoid of evidence of its attestation. That state of things, I observe in passing, and notwithstanding the further documents and proofs, is one that I judge to have since remained unaltered; and it bears on what I deem to be the one controlling issue here.
Since decedent at the time of his death was neither resident in nor a citizen of Italy, the executors were advised by counsel that the Italian will, for the reason indicated, was not provable in New Jersey. Accordingly the executors proceeded with their administration. The Italian interests at that time were represented by counsel now acting for plaintiff, and who, it appears from the stipulation, did not dissent from the refusal of the executors to recognize the Italian will, for by letter of September 20, 1941, they advised their principal that the Italian will would be "entirely disregarded by the executors in this country because it was not executed in accordance with the laws of the State of New Jersey."
That, for the time being, seems to have ended the matter of the foreign document. Its revival came in the bringing of the present suit, instituted in July, 1949, following the receipt by plaintiff's counsel of the other transcript (delivery minutes, Schedule "P" in the Stipulation) in November, 1948. It is upon these delivery minutes that plaintiff's contention that the Italian will is validly attested entirely rests. They are all that could possibly be relied on in any case since everything else in the transcripts is post mortem. (We shall see how this limitation is overlooked by plaintiff's counsel.) Concerning attestation I find, as I have already indicated, nothing in the delivery minutes that in the least supplies the deficiencies shown by the minutes of publication, upon which the executors were counselled in 1941.
During the interval of the late war the Italian parties, through the Swiss consular offices ...