Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
This appeal involves the distribution to a beneficiary behind the Iron Curtain of estate funds now held by the Union County Treasurer and claimed by plaintiff and the impleaded defendants (hereinafter defendants), respectively.
When the matter was last before us in March 1964 we remanded it to the trial court for the taking of testimony as to the continued existence and functioning of the beneficiary, the Roman Catholic Church in Vevirzenai, Lithuania. We did this upon the representation of plaintiff's counsel that there were two witnesses, now available, who were in Vevirzenai in 1963 and could testify as to the viable existence of the church. We retained jurisdiction, directing that prompt notice be given the Attorney General so that he might, if he so desired, participate in the supplemental proceedings and in this appeal.
The supplemental record is now before us, together with plaintiff's and defendants' supplemental briefs. The Attorney General, who had not been joined as a party or notified of the proceedings before our remand, participated in the supplemental hearing and has filed a brief dealing with all issues heretofore raised.
Antanas Andrejeuski, a Union County resident, died June 21, 1941, leaving a last will duly admitted to probate by the surrogate. The will, executed in 1933, bequeathed $500 to a niece, defendant Pauline Styler, and $700 to another niece, defendant Petronella Padagas (Scanlon). In addition, there were small bequests to decedent's godfather, a Catholic church and a Catholic society, all of this country, as well as to a brother and his children, and to a sister, all residing in Lithuania. Paragraph 10 of the will bequeathed $10,000 to "The Roman Catholic Church, Vevirzona, Lithuania." By paragraph 11, testator left the rest, residue and remainder of his estate to that church, stating that "it is my wish that the said Church shall in its discretion use the said residue for the benefit of poor people."
The beneficiaries residing in this country, including defendants, were paid their legacies in full and signed receipts therefor. However, the Lithuanian nationals, including the Vevirzenai church, did not receive their legacies because of World War II. By order of the then Union County Orphan's Court, dated June 23, 1943, the executor was directed to pay the balance remaining in his hands ($19,732.27) to the surrogate as clerk of the court, "for the benefit of the Lithuanian Nationals."
On January 24, 1949 Jonas Budrys, the Consul General of Lithuania at New York, applied to the Union County Court, Probate Division, on behalf of the Lithuanian nationals, requesting that the surrogate pay over to him the monies deposited with him. The consul was represented by plaintiff's present attorney. Defendants filed an answer objecting to the payment. The County Court dismissed the complaint without prejudice, on the ground that plaintiff had failed to sustain the burden of proof as to his right and title to the monies.
The fund remained with the surrogate until October 9, 1959, when the Chancery Division, upon application of the
county attorney, directed that it be paid over to the county treasurer as "unclaimed monies" for the general use of the county, pursuant to N.J.S.A. 40:26A-1 et seq.
Plaintiff instituted the present action in March 1963. The complaint alleged that he was the duly authorized representative of the Roman Catholic Archdiocese of Kaunas, Lithuania, with full power to act not only in Lithuania but in the United States with respect to all property rights and matters affecting the Roman Catholic churches in that diocese, as evidenced by a certificate of the Secretary of State of His Holiness in Vatican City, dated November 17, 1962. After reciting the Union County proceedings above referred to, the complaint went on to state that the federal Office of Alien Property, pursuant to application duly made, had on May 25, 1950 issued a license to Richard J. Tarrant (plaintiff's present attorney), "as attorney for Dr. Joseph Skvireckas, Metropolitan Archbishop of Kaunas in Lithuania," unblocking the distributive share of the Vevirzenai church. (Metropolitan Archbishop Skvireckas has since died and plaintiff has succeeded to his powers.) The complaint also alleged that the Vevirzenai church, known as St. Matthews Roman Catholic Church, was in existence when the testator died in 1941 and is in existence today. Plaintiff demanded judgment directing the Union County Treasurer to pay him, as the duly authorized representative of the Roman Catholic Church in Lithuania, the entire fund on deposit with him under the 1959 County Court order, then amounting to $25,163.13, less whatever sums were due the individual Lithuanian nationals.
Following the filing of the complaint an order issued directing the county treasurer to show cause why the requested judgment should not be granted. No notice was given any of testator's next of kin or the Attorney General. The Chancery Division judge then took the testimony of Reverend Rackauskas and Reverend Jankus, two Roman Catholic clergymen, as well as that of plaintiff. At the conclusion
of the hearing the judge suggested that formal notice be given the next of kin of the application for entry of judgment in plaintiff's favor. An order issued that defendants Styler and Scanlon show cause why the judgment should not be granted. They responded to that order, and the matter was argued at some length. Defendants maintained there was no clear proof of the existence of the church or that the funds could safely be transmitted. Because they had not been represented at the original hearing, they reserved their objections to all hearsay evidence introduced at that time. On June 11, 1963 the trial judge directed the county treasurer to pay plaintiff the sum of $22,163.13 of the fund on deposit with him as "unclaimed monies" of the estate. The order was stayed for 20 days to permit the taking of an appeal. We continued the stay pending determination.
In directing that the monies be paid over to plaintiff, the trial judge stated he was satisfied from the testimony, "even with its necessary shortcomings," that the Vevirzenai church was still functioning. As to whether the funds would reach the objectives which testator intended, the judge was of the opinion that "to pay the funds into the hands of the Archdiocese in which this particular parish is located is a practical way of paying the fund without facing the problem of international transmittal through bank channels or postal channels." He accepted as "reasonably satisfactory" plaintiff's testimony that "there are established channels within the church organization by which, without relying upon postal channels and international banking channels, the funds can be sent to and applied to and used for the benefit of the objectives in the parish which the testator wanted to benefit."
When the appeal was originally before us defendants argued that (1) there was no proof of plaintiff's authority, as Auxiliary Bishop of the Kaunas Archdiocese, to administer the funds in question or to receive them from our courts; (2) plaintiff had failed to prove the present existence of the Vevirzenai church or that the money bequeathed by testator
would reach the ultimate beneficiaries; (3) a letter from the Department of State, hereinafter mentioned, should have been excluded from evidence as hearsay; (4) the cy pres doctrine is inapplicable here; and (5) defendants, as next of kin, are entitled to share in the funds as lapsed legacies. We did not pass upon any of these contentions; rather, upon the representation of plaintiff's counsel as to the availability of witnesses who had been in Vevirzenai in 1963, we remanded the matter for the taking of their testimony.
We first address ourselves to a motion made early in the appeal that defendants had no right, vested, contingent or otherwise, to the bequests so as to make them parties aggrieved by the order under consideration. We denied ...