Clapp, Jayne and Francis. The opinion of the court was delivered by Francis, J.A.D.
This appeal challenges the order of the trial court dismissing the action for failure of plaintiff to answer interrogatories.
Joseph Wozar died in Ocean County, New Jersey, on July 10, 1943. The defendant Stephen Wozar, a brother who resided in the same county, applied for and was granted letters of administration on the estate. Plaintiff's brief says that in making the application defendant represented that he was the sole heir at law and that decedent left no children. However, the petition to the surrogate does not appear in the appendix. No inventory or account has ever been filed.
On December 23, 1953 plaintiff Alois Wozar, a resident of Czechoslovakia, claiming to be the decedent's son, obtained an order requiring defendant to show cause why he should not file an account and why the letters of administration should not be revoked.
Apparently on January 8, 1954, the return date of the order, defendant through counsel advised the court that according to rumor Alois Wozar was dead. The matter was then continued on defendant's motion until March 19, 1954, and plaintiff's counsel sought further proof on the matter through the Czechoslovakian Embassy in Washington, D.C. This, of course, required investigation and the gathering of documentary proof in Czechoslovakia.
In the meantime, on January 29, 1954, defendant served certain interrogatories on plaintiff's counsel having to do largely with the issue of identity. The use of interrogatories in probate proceedings is proper practice. R.R. 5:3-7; In re Blake's Estate , 33 N.J. Super. 229 (Cty. Ct. 1954); 7 New Jersey Practice (Clapp, Wills and Administration) , (1950), p. 517, § 950. However, some of them dealt with collateral matters, of which more later.
On March 2, 1954 defendant served notice to dismiss the complaint for failure to furnish answers within 15 days. R.R. 4:23-6. The affidavit of plaintiff's counsel recites that a few days before March 12, the return day of the motion, he received documentary evidence from Czechoslovakia in the form of a birth record of plaintiff, a marriage certificate of decedent and plaintiff's mother, a death certificate of another son of decedent, and identification confirmation certificates made by certain residents and by the "Local National Committee" of Ruzemberok, Czechoslovakia. This material (as well as an ex parte deposition of plaintiff which was filed on October 25, 1953, prior to the institution of the action) came through the embassy at Washington.
The documents were handed to defense council for examination, but after inspecting them he insisted upon moving the motion to dismiss the complaint. On the argument, objection was made to certain of the questions as improper, but the court ordered the filing of answers to all of them within ten days. Plaintiff's attorney's affidavit, which was filed in opposition to the final motion to dismiss the complaint, recites that he explained to the court the physical impossibility of obtaining sworn answers from Czechoslovakia within that time. However, an order was entered directing that it be done not later than March 22, 1954.
In the face of the impossibility of complying with the order, answers were prepared from the material at hand and sworn to by the person holding the power of attorney from the plaintiff as the truth to the best of her knowledge and belief. The affidavit recited that the matter was being handled in this fashion because of the time limitation. The
answers in this form were sent by registered mail to defense counsel who received them prior to March 22. And plaintiff's attorney's affidavit says that the same answers were dispatched immediately to Wozar through the embassy to be sworn to.
On April 2 a motion was made to strike certain of the interrogatories as improper. These questions, the propriety of which is hereafter considered, were not answered even in the manner indicated. In addition, application was made for an order to take the testimony of certain persons in Czechoslovakia in order to prove the authenticity of the documents previously exhibited to defense counsel and to prove the identity and continued existence of plaintiff. The motion to strike was denied and that seeking leave to take depositions was granted. ...