Carton, Lora and Seidman. The opinion of the court was delivered by Lora, J.A.D.
This is an appeal from an order of the Atlantic County Court, Probate Division, denying the application of Albanian residuary legatees under the will of Basil Ciri to compel payment to them of their distributive shares.
Ciri, a native of Albania, died testate a resident of Atlantic City on November 10, 1964, naming his brother and two sisters, residing in Albania, residuary legatees.
The will provided that since it was possible that restrictions on property rights enforced by the government of the country
in which the beneficiaries were living might prevent their free enjoyment of the bequests, the executor and two other named individuals were to constitute a committee to decide in their complete discretion when and what amounts the principal and income were to be distributed, with leave to apply to the courts of New Jersey for directions if in doubt as to such free enjoyment.
Pursuant to the foregoing, appellant-beneficiaries have received intermittent payments, totalling some $2,200 per beneficiary. In 1972, on the return of an order to show cause why the trustee's (The First National Bank of South Jersey) intermediate account should not be approved, the beneficiaries' attorneys-in-fact requested immediate distribution of the balance of the estate.
At the hearing a former Albanian lawyer and judge, now resident in Maryland and who was last in Albania in 1948, but who had kept abreast of developments therein, testified that the Albanian Constitution guaranteed the enjoyment of private property and the right of inheritance; that private property could not be taken without due process of law; that money sent there from the United States would not be confiscated; and that if for any reason, political or otherwise, a person would not be permitted to receive such funds, the money would be returned to the sender; that there are no Albanian inheritance taxes, and that in any event it was advisable to disburse large amounts over $50,000 in installments of not more than $10,000. He further testified the funds could be used to buy or build a house, go into a small business, for furniture, for vacations and for everyday living.
One of the committee of three, who was in Albania in 1966, testified that the beneficiaries were advanced in years; that decedent's brother was not capable of receiving or managing his estate due to lack of education; that the decedent's wish was that the money remain here, draw interest and be used to care for his brother and sisters. The funds, he said, would be safer here. However, he did not meet decedent's family when in Albania.
The trial judge found that the beneficiaries received limited benefits from the monies sent them, not in the sense that the government confiscated any part of the funds, but "limited in the sense as to the use that can be made of same"; that economic and social conditions existing in Albania restricted the "free enjoyment" of such monies. He referred to N.J.S.A. 3A:25-10 in addition to the will as authority for retaining trust proceeds where it appeared that the beneficiary would not have the benefit or use or control of the money. He further found that the decedent's fear was not that the funds would not come to them for their use, but how they could use the funds. As a consequence thereof, plaintiffs' application for distribution was denied.
Thereafter, the beneficiaries sent letters to the trustee bank requesting their full distributive shares. In June 1973 the attorneys-in-fact again moved for distribution but the trial judge, after hearing, concluded that no facts were adduced which would indicate there had been any change in the situation in Albania which would give the beneficiaries the "free enjoyment" of the monies. The application was denied. This appeal was taken from the adverse judgment entered. At oral argument it was indicated the total trust corpus is now approximately $17,000 to $18,000.
Appellants contend that since the trial judge found the beneficiaries had the benefit or use or control of estate funds, it was error to deny immediate distribution because they allegedly did not have "full enjoyment" thereof; that it was error not to hold that the trustee committee abused its discretion in refusing to distribute the residue of the estate, and that the decision to deny immediate distribution of the assets of the estate constituted an impermissible ...