Gaulkin, Foley and Lewis. The opinion of the court was delivered by Lewis, J.A.D.
This is one of several appellate reviews incident to the estate of Joseph Alexandravicus, deceased. Death occurred February 15, 1953, and the litigated issue as to the right to administer decedent's estate is still a matter of controversy.
The detailed and historic facts portrayed in the judicial opinions previously reported need not be here recited. See In re Estate of Alexandravicus , 35 N.J. 230 (1961), and Aleksandravicius v. Moskowitz (action by attorney-in-fact for heirs with respect to sale of real estate), 76 N.J. Super. 470 (App. Div. 1962).
Subsequent to the afore-mentioned Supreme Court decision (decided June 20, 1961), Jonas Budrys, Consul General of the Republic of Lithuania, instituted proceedings in the Hudson County Court, Probate Division, demanding that he be granted letters of administration. The crucial allegations set forth in his verified complaint may be summarized:
-- Joseph Alexandravicus of the County of Hudson died intestate leaving him surviving two brothers, Vincas and Antanas, residents of the Republic of Lithuania.
-- Said Republic was unlawfully subjugated on June 15, 1940 and, shortly thereafter, it was illegally annexed into the Union of Soviet Socialist Republics. The occupied government is not recognized by the United States of America.
-- Plaintiff's consular status with the Republic of Lithuania is evidenced by an exequatur issued to him by the Government of the United States. Pursuant to the "laws and treaties" of our country and the Republic of Lithuania, he, as consul general, has the power and authority to act as attorney-in-fact for his nationals who inherit American property in the State of New Jersey.
-- The application of Jesse Moskowitz, Esq., for such an appointment was predicated upon a power of attorney (dated February 19, 1959), executed by decedent's two brothers empowering the New York law firm of Messrs. Wolf, Popper, Ross, Wolf & Jones, or its nominee, to apply for letters of
administration. Said power was not executed before officials of the Republic of Lithuania and was drafted in both the Russian and English languages which neither of decedent's brothers understood. It "was not explained to them before they executed the document and * * * their signatures were obtained under duress by officials of the said illegal and unrecognized occupational authorities," and the instrument should, therefore, be adjudged void.
Upon being served with a copy of the pleading and order to show cause returnable December 15, 1961, Moskowitz moved before the Supreme Court for a judicial directive under its prior decision. On January 15, 1962 that court ordered the issuance of a special mandate providing, inter alia , that letters of administration be issued to Moskowitz upon filing the required bond and that there be a "prompt disposition of the complaint of Budrys upon oral testimony with restraint in the meantime against the disposition of funds by Moskowitz." After a full hearing before the County Court, the trial judge entered an order on August 3, 1962 vacating the order to show cause and dismissing the complaint.
On appeal to this court plaintiff advances two major arguments to support a reversal: (1) the power of attorney and designation under which the authority of Moskowitz emanates is invalid; and (2) the consul general has the exclusive right to be appointed administrator.
Preliminarily, we shall dispose of defendant's overriding defense that the basic issues raised by Budrys in his complaint, and here on appeal, have already been determined by our Supreme Court and that plaintiff, in effect, is relitigating questions which are res judicata. We do not agree with that contention. The consul general was not a party to either the prior litigation on appeal before the Supreme Court or the subsequent proceedings wherein a petition for rehearing was denied. His presence during oral argument on appeal did not afford to him any legal status in the proceedings. While the court, upon the record then before it, concluded that Moskowitz should be appointed as administrator of the
estate, it did not foreclose the right of an interested party to challenge the legality of the documents underlying the appointment. There was an express direction that the order appointing him contain a provision as in In re Watson , 35 N.J. 402, 410 (1961), for leave "to all interested persons to apply for the designation of a different administrator or such other relief as may be appropriate." Any doubt as to the court's intention or meaning in that respect was explicitly resolved by its aforesaid special mandate directing the trial court to proceed with the disposition of the cause of action initiated by plaintiff.
We turn now to the merits of ...