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Matter of Estate of Alberto Spano

Decided: May 8, 1967.

IN THE MATTER OF THE ESTATE OF ALBERTO SPANO, DECEASED. SANTO SPANO, CLAIMANT-APPELLANT,
v.
VINCENT J. COMMISA, ADMINISTRATOR OF THE ESTATE OF ALBERTO SPANO, DECEASED, DEFENDANT-RESPONDENT



For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.

Schettino

The question in this case is whether a child acknowledged by his natural father under Italian law is entitled to inherit his father's estate in New Jersey.

The father, Alberto Spano, died intestate and a resident of Newark, New Jersey, owning property there.

He was born in Italy. During the period of 1907 to 1915 he cohabited with Leonarda Todaro in the town of Calatafimi, Province of Trapani, Italy. No ceremony of marriage was ever performed. On January 25, 1907 a child, Santo Rosetti, was born to them. Alberto supported Santo from the date of his birth until he reached majority, and even after migrating to Newark in 1915. For a period of three years during the late 20's, Santo served in the Italian Army under the name of Santo Spano.

On December 11, 1937, in Newark, Alberto Spano executed a document which he filed in Italy, in compliance with Italian law, acknowledging Santo as his natural child. As one of the results of the acknowledgment, the birth record of Santo, in the registry of Calatafimi, was changed to note the fact that Santo Rosetti was henceforth to be known as Santo Spano. A similar document was executed by Leonarda Todaro in 1957, and once again the birth certificate was amended.

In 1938 Alberto referred to Santo as his son, and executed an affidavit of support in order to facilitate Santo's coming to the United States. A visa was issued by the Italian government to Santo Spano. Santo arrived in the United States in 1940. He became a United States citizen in 1948, and resided with Alberto in Newark until Alberto's death on November 29, 1956. During this entire period Alberto introduced Santo to his friends and acquaintances as his son.

As stated above, Alberto died intestate, leaving no spouse and no child other than Santo. He had married twice but both wives had predeceased him. An administrator of Alberto's estate was appointed by the court.

In April 1962 Santo moved before the Essex County Court, Probate Division, for an order discharging the administrator on the grounds that he was inadvertently and improperly appointed administrator as Santo was the true and only heir of Alberto. The trial court ruled that Santo was not the heir or next of kin of Alberto and ordered Santo to account to the administrator for the rental income on the realty owned by Alberto on the date of his death. The trial court ruled that the status of an acknowledged natural child does not confer upon Santo the rights of a legitimate child. It could find no authority for the proposition that the status of an acknowledged natural child, created by a foreign country, the residence of the child, should give rise to rights of inheritance under the law of decedent's domicile (here, New Jersey) to a person claiming to be the recognized natural child.

In August 1962 Santo moved, under R.R. 4:62-2, to vacate the order. As a result of a hearing on the motion, the trial court entered an order reciting that further testimony and proof were required. The hearing was finally held in December 1963. In January 1964 the court entered an order denying the motion to vacate. The court, once again, found that whatever status Santo achieved under Italian law, he did not achieve a status of legitimization under the laws of New Jersey and, thus, he was not entitled to inherit Alberto's estate.

On February 5, 1964 Santo appealed to the Appellate Division, where he offered affidavits of experts in Italian law as to the rights of an acknowledged natural child to inherit from his father's estate. The Appellate Division affirmed the trial court's determination because the proofs were inadequate to establish that Santo had been legitimatized by the procedures taken by Alberto.

Although certain persons believe they are the surviving next of kin, i.e., cousins of the decedent, they have failed to produce any evidence of their relationship to the decedent. Nevertheless, they have participated in these proceedings.

Their attorneys appeared at this argument, so they are bound by our determination.

The State of New Jersey, to which the decedent's estate will escheat if it is found that the decedent died without heirs, next of kin, or surviving spouse, has filed a statement in lieu of brief, R.R. 1:7-4(b), R.R. 2:7-1, in which the State joined with the brief of the administrator. Some procedural difficulties have been raised. Where a contest exists between the State (here, the State seeking an escheat) and one of its citizens ...


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