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Matter of Estate of Birkner

Decided: January 7, 1966.

IN THE MATTER OF THE ESTATE OF VIRGINIA BIRKNER, DECEASED


Johnson, J.c.c.

Johnson

This is a proceeding wherein plaintiffs-executors seek a judicial settlement of their first and final accounting and wherein plaintiff-trustee seeks instructions concerning certain provisions of decedent's last will and testament.

There have been no objections filed to the account, and the court has reviewed the same and finds no reason for not allowing the account as stated. The requests for allowances

have also been reviewed and will be allowed pursuant to a separate order filed herein. The sole question for determination is the manner of distribution of the residuary estate under the paragraph Fifth of decedent's will. Under that paragraph the executors are to transfer and deliver the entire residuary estate to the trustee to be held in trust for the following uses and purposes:

1. To pay $250 quarter-annually, from and after the date of testatrix' death, to her daughter, provided she survives the testatrix.

2. To pay $100 quarter-annually, from and after the date of testatrix' death, to each child of said daughter who survives testatrix, but if such grandchild shall predecease testatrix leaving issue, the payment which the parent would have received is to be paid to his or her children per stirpes.

3. Upon the death of testatrix' daughter, the amount of payments directed to be made quarter-annually to the grandchildren shall be $250 each.

4. On the death of any such grandchild the quarter-annual payment to such grandchild shall be made to his or her issue, per stirpes.

5. On the death of the survivor of the children of said daughter, then the trust shall terminate and the remaining principal and any accumulated income shall be paid over to the living issue of the grandchildren, per stirpes.

No payments have been made under the trust provisions because the plaintiffs claim:

(a) There is an uncertainty as to whether the beneficiaries would receive the benefit, use or control of such payments since such beneficiaries reside in Czechoslovakia;

(b) There is an uncertainty as to whether, upon settlement of the account of the executors, distribution should be made to the beneficiaries of the trust in lump sums, accumulated quarterly, from the date of decedent's death to the present time;

(c) The executors are uncertain as to whether or not they should pay over the same to the trustee or should pay over

the same to this court in accordance with the provisions of N.J.S. 3A:25-10; and

(d) There is an uncertainty as to the validity of the trust since it might be deemed to violate the rule against perpetuities.

Decedent died in Passaic, N.J. on May 13, 1963, leaving as her heirs at law and next of kin the following persons: her daughter Katarina S. Sedlakova, aged 51; her daughter's five children; a son Ladislav Sedlak, aged 33 and the father of two minor children, Maria Sedlakova, aged 7, and Iveta Sedlakova, aged 3; a daughter Marinna S. Slosserova aged 30 and the mother of three minor children, Maria Slosserova, aged 11, Eva Slosserova, aged 10, and Jana Slosserova, aged 9; a daughter Victoria S. Baranova, aged 24 and the mother of a minor child Pavol Baran, one year of age; a son Engen Sedlak, aged 21, and a daughter Katarina Sedlakova, aged 17.

Transmission of funds to beneficiaries residing in Czechoslovakia

N.J.S. 3A:25-10 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 to which the fiduciary is accountable * * * may direct that such money or other property be paid into such court for the benefit of such legatee, next of kin, beneficiary of a trust, or such person or persons who may thereafter appear to be entitled thereto. * * *"

It is the obligation of our courts, under this statute, to make sure that funds left to an individual or institution behind the Iron Curtain can safely be transmitted to the beneficiary. There must be convincing proof that the distributive shares will reach their proper destination. We may not turn away from the common knowledge of obstacles which stand in the way of that desired achievement. Brizgys x. County Treasurer of Union Co., 84 N.J. Super 485 (App.

Div. 1964), certification denied Brizgys v. Styler, 43 N.J. 270 (1964).

There are federal restrictions governing the transmission of funds to countries behind the Iron Curtain, including Czechoslovakia, which restrictions do not apply to private funds but which indicate to this court that those desiring to transmit private funds should use extreme caution. 31 Code of Federal Regulations, ยง 211.3(a) (Supp. 1962) The Appellate Division in the Brizgys case, supra, stated that the distinction was unimportant. The important factor is whether there is reasonable assurance that the distributee will actually receive the monies to which he is entitled. For the answer to this we cannot be guided to any great extent by what is done in a different country from the one with which this court is presently concerned. Although the Secretary of the Treasury has listed several countries in the above-mentioned regulations, each country listed therein has its own peculiar policies and each case must be determined ...


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