On appeal from the Somerset County Court, Probate Division, whose opinion is reported in 7 N.J. Super. 455.
For dismissal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. Opposed -- None. The opinion of the court was delivered by Oliphant, J.
[5 NJ Page 509] 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:
"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 Szekesfehervar, 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."
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 Consul 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 Consul 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 Consul General the legatee would not have the benefit or use or control thereof; that the court doubted whether the orphanage 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 Consul 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, 7 N.J. Super. 455 (1950).
The action of the court below was based on R.S. 3:26-18, which provides:
"Where it shall appear that a legatee, next of kin or beneficiary of a trust would not have the benefit or use or control of the money or other property due him, or where other special circumstances make it appear desirable that such payment should be withheld, the court by which the fiduciary was appointed, or in the case of a trust where the trustee was appointed other than by a court, the Court of Chancery, on motion of any party, or, failing such, on motion of the Attorney-General, or on the court's own motion, may direct that such ...