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Court Decides Interesting Jurisdictional Will Issue


In 1924, a woman died a resident of New York County leaving a will which was validated in New York County. In her will, she created a trust, the income of which was to go to her brother for life, the remainder to his next of kin, subject, however, to a power in him to make a different disposition by a general power of appointment in his will.

Her brother, the designated life beneficiary and heir of the power, was an American-born citizen who resided in Germany with his German wife and three German children for many years preceding his death there. In the fall of 1939, allegedly because he ‘was worried about the possibility that the German Government would confiscate the trust, he executed a will in which he exercised his power of appointment in favor of the petitioner. The will was executed in the German language and was formally valid under the law of Germany. At the suggestion of his son, the will was delivered for safekeeping into the hands of a notary in Berlin where it was placed in an office safe.

A New York Probate Lawyer said that in 1943, four years after the brother executed the will; the New York trustee of the Foster trust was served by the Alien Property Custodian with Vesting Order which vested in the United States Government the entire interest of the brother and his next of kin in the trust. Shortly thereafter, more than two years before he died, the building in Berlin in which his will was being stored was burned to the ground in a bombing raid and the will was destroyed.

It was not until a year and a half after it happened that he learned of the destruction of his will from his son. His reaction to this news was testified to, over objection, by his son; he suggested, according to the latter, that the destroyed will had become without object and that he intended to come to this country and, when here, exercise the power of appointment in favor of his wife.

After his death in 1946, the petitioner instituted the present proceeding to admit his will to probate. The court, finding that the deceased had properly executed the will, that it had been fraudulently destroyed within the meaning of the statute and that it had not been revoked, admitted it to validation. Upon appeal by another of the deceased woman’s sons, the Appellate Division reversed and dismissed the petition. Although the court recognized that an accidental destruction was encompassed within the term fraudulently destroyed and although the court found that revocation was not established, it held that the one who made the will had orally adopted the will’s prior destruction.

Manhattan Probate Lawyers said that the appellant’s point is that the son had no right to appeal because he was not an aggrieved party. The contention is based on the fact that the 1943 vesting order transferred to the Government all right, title, interest and claim of the husband and his next of kin in and to the trust. If such a transfer was affected, the argument runs, the son no longer had any right or interest in the Foster trust as next of kin and, accordingly, even if his father’s will were denied validation, neither he nor any other next of kin of the deceased would be entitled to share in the trust.

Queens Probate Lawyers said that the argument has a superficial appeal, but that is all. It may well be that the vesting order in and of itself deprived the son of all right or interest in the Foster trust and, if that is so, he will never be able to share in that trust. However, the Surrogate’s decree admitting the husband’s will to validation created a further obstacle to his son’s sharing therein. Before the entry of the decree, from which the son appealed to the Appellate Division, he had to overcome only the vesting order. After its entry, he had also to overcome the force and effect of the document offered by the petitioners. This is sufficient to constitute the son as an aggrieved party.

The decedent spent most of his life in Germany, died a resident of Germany and executed the will in question in that country in the German language and in the form prescribed by German law. Since the validity and effect of a will of movables is determined by the law of the state in which the deceased died resided, the question of the effect of the destruction of the will should be governed by German law.

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