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Fidelity Union Trust Co. v. Berenblum

Decided: March 6, 1964.

FIDELITY UNION TRUST COMPANY, A TRUST COMPANY OF THE STATE OF NEW JERSEY; MARGARET BERENBLUM, HARRY POTOLSKY, AND SAMUEL BERENBLUM, AS EXECUTORS UNDER THE LAST WILL AND TESTAMENT OF HARRY BERENBLUM, PLAINTIFFS,
v.
MARGARET BERENBLUM, HARRY POTOLSKY, ARCHIE POTOLSKY, NATHAN POTOLSKY, MORRIS POTOLSKY, NAOMI KATZ, GERTRUDE TOBIAS, BERNICE VARON, HAROLD KATZ, SYLVIA COHEN, SAM BERENBLUM, ROSE BERENBLUM, MIRIAM YODOWITZ, ESTHER COOMBS, AND YETTA FIEDLER, DEFENDANTS



Herbert, J.s.c.

Herbert

Harry Berenblum died on May 26, 1960. He left a will dated April 30, 1936 in which he named Fidelity Union Trust Company, his wife Margaret Berenblum and his nephews Harry Potolsky and Samuel Berenblum executors and trustees. There is a very substantial estate. Questions having arisen about the content of the estate and its proper distribution, the executors and trustees have brought this suit in which they, as well as other parties, seek a judgment of the court to answer those questions.

DISTRIBUTION -- THE BEQUESTS TO CHAMKA LEVENSON

After listing a number of charitable gifts, the will creates a trust of the residue of the estate and directs that the trust income be paid during the lifetime of the testator's widow, one-half to her, one-fourth to the testator's sister "Chamka Levenson, of Chemsk, Poland," one-eighth to another sister Rachel Potolsky, and one-eighth to a brother Isaac Berenblum. At the widow's death the will orders the entire trust estate distributed 40% to Chamka Levenson, 30% to Rachel Potolsky and 30% to Isaac Berenblum (called "Ike" in the will).

As already noted, the will was executed in 1936. The provisions for Chamka Levenson were never modified even though she and her husband were Jews and the town or village in which they lived was overrun by the German army in 1941 and held by the Germans for a considerable time thereafter. There is no evidence that Mr. Berenblum ever heard from his sister or her family, either directly or indirectly, after 1941. She has not come forward in person or proxy to claim her benefits under the will, nor has any descendant of hers.

Chomsk was within the borders of Poland when Hitler invaded that country in 1939. It is now in Soviet Russia, in the southern portion of the White Russian Soviet Socialist Republic. It is shown on present-day maps about 65 miles east northeast of the Polish-Russian border city of Brest (Brest-Litovsk). The name "Chomsk" appears to be correct, rather than the spelling "Chemsk" which is used in the will.

An extensive investigation has been made for the purpose of locating Chamka Levenson or any members of her household. Counsel for all parties participated in this. They co-operated with each other by exchanging such information as was obtained and in the planning of steps to be taken. Vigorous efforts were made to obtain permission from the Soviet Government to send a representative to Chomsk to make inquiries about the Levenson family, but such permission was refused. By correspondence, a woman named Valentina Levenson (Mrs. Gershko Levenson) was located at Brest. She answered the first inquiry addressed to her by stating that Chamka Levenson and her husband Schmuel "died during the war of 1942." She went on to say that the only one of the Levenson family who survived was her own husband, a son of Schmuel's brother Yankel. This exchange of correspondence took place between Valentina Levenson and Mr. Schaffer, attorney for Mrs. Margaret Berenblum. It was followed by a letter in which Mr. Schaffer submitted a list of questions which Mrs. Levenson answered. She had known Chamka Levenson, the wife of her husband's uncle Schmuel.

She saw her in 1940. The home of Chamka and her family was in the Village of Chomsk. There were five children, but Mrs. Valentina Levenson could remember only the name of one of the boys. Chamka Levenson, her husband and children were all shot to death in 1941 "by the fascists" in the Village of Osovtzi. Valentina Levenson went on to say that her information about the shooting came from stories of people who witnessed the killings.

Inquiries were also made about Chamka Levenson and her family in Israel through Yad Vashem, an organization which uses the descriptive designation "Martyrs' and Heroes' Memorial Authority." Assurance of the standing of Yad Vashem is found in the fact that its personnel and resources were used to some extent in assembling material for use at the trial of Adolf Eichmann. Through its efforts a man named Joseph Beder was located. He was born in Chomsk, had been there during a portion of the German occupation, had known the Levensons, and had first-hand knowledge of some of the murders of Jewish citizens committed by the Germans.

The attorneys for all parties as well as a representative of the corporate executor went to Israel to obtain directly from Mr. Beder all pertinent information he could give, as well as to hunt for other proofs and follow up any other indicated lines of inquiry that might appear to offer some hope of additional information. They reviewed there with representatives of Yad Vashem the statement which that organization had previously obtained from Mr. Beder and the next day met with him. No formal deposition was taken, but Mr. Beder was questioned much as though he were giving one and he did execute an affidavit verifying the statement or declaration which he had given to Mr. Alperovitz of Yad Vashem on August 1, 1962 about the Levensons. He also identified a group photograph showing Chamka Levenson, her husband, her daughter and four sons, taken in front of the Levenson home at Chomsk, and he swore that Chamka, the daughter Chaitcha and two of the sons were killed by the

Germans in July 1941, and that Schmuel (the father) and the other two sons were killed in May 1942, and that none of the children had ever married. Mr. Beder's affidavit concludes with this statement: "So far as I know, I am the only surviving Jewish person who lived in Chomsk, Poland during the 1941-1942 exterminations."

Although Mr. Beder said that all of the Levensons were murdered at Chomsk, but on two different occasions, and Mrs. Valentina Levenson has written from Russia that they were all killed on a single occasion in the Village of Osovtzi, both agree upon the essential fact that all members of the family were victims of the Germans.

At or about the time Mr. Beder was being interviewed advertisements were run in four Israeli newspapers seeking information about Chamka Levenson of Chomsk, Poland or about her children. These were printed in Hebrew, Yiddish, English and Polish. A man named Avraham Ben-Moshe was the only person who responded. He presented himself for an interview with all counsel and Mr. Sparkes of the Fidelity Union Trust Company. He claimed that his grandfather and Chamka Levenson's mother were brother and sister and that he knew the entire family. He at first said that there had been four children, but when shown the photograph identified by Mr. Beder, changed the number to five. He said that the eldest was the daughter, who was about his own age. He also said that he and an uncle had gone to Chomsk in 1945 or 1946, and while there had learned that every Jew had been wiped out, including the members of the Levenson family. He declared that this had been told to him by a priest at Chomsk and by former neighbors of the Levensons. His story would carry more weight if he had not asked for a share of the estate as a condition of signing a statement or affidavit.

Many other inquiries were made but for the most part yielded no worthwhile results and at best produced suggestions about other avenues to explore. A stipulation of facts filed in the cause lists a total of 49 possible sources of information to which questions were directed. In addition to

particular inquiries, counsel have made an extensive examination of published materials about German persecutions of the Jews in an effort to find pertinent references to Chomsk and the region in which it lies. This study confirmed the German occupation and the practice in eastern Poland, as elsewhere, of systematic murder. Had another part of the world been the last known home of the Levensons, an investigation could have been made on the spot, information assembled and depositions taken from witnesses having personal knowledge. That could not be done at Chomsk, however. The Soviet authorities refused permission for anyone connected with the preparation of this case to go there.

Some help in judging the proofs about the Levenson family is furnished by cases dealing with what has been called the "special peril" doctrine. A man is in a situation of danger and disappears. His body is not found and he is never heard from. His will may be probated or his life insurance collected without waiting for the passage of seven years of unexplained absence. Lukens v. Camden Trust Co. , 2 N.J. Super. 214, 227 (Ch. Div. 1948), and other cases are collected in 34 A.L.R. 1389 and 61 A.L.R. 1327. When the Germans in the summer of 1941 occupied the region in which Chomsk was located, the Jews of that village were placed in extreme peril. They were in the control of men who intended to kill them all. There is nothing in the proofs to indicate Chamka Levenson, her husband, or any of her children escaped that peril. Mr. Beder and Valentina Levenson definitely say they did not. That nothing has been heard from them during the 20 years since the German occupation of Chomsk ended indicates they are all dead.

The children of Chamka Levenson were old enough by 1941 to have been informed about relatives in America in such a way as to enable each of them, if living at the end of the war, to get in touch with those relatives, even though Chamka and her husband had been killed during the German occupation. Yet they were apparently young enough, as indicated by the pre-war photograph already mentioned, to make it unlikely

that even the eldest might have married and had a child before being killed by the Germans. This case, therefore, has in it little or no suggestion of a possibility that a Levenson grandchild, saved as an infant when his parents died, could have grown up and be now living somewhere with no knowledge of family ties.

My conclusion is that Chamka Levenson and all the members of her immediate family died before the testator, having been murdered by the Germans at some ...


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