In this proceeding the petitioner requests probate of a will executed in 1955 while the decedent was domiciled in New York County. A New York Probate Lawyer said that the petitioner is an appointed executor of a will which bequeaths the residuary estate to a New York charity. Decedent journeyed to Bavaria, West Germany in 1965 and executed a holographic will while still there in 1967; that will provides that it revokes all prior wills. She died, still in Germany, having neither home nor presence in New York from after departure in 1965 until her death in 1968.
A New York Will Lawyer said that Respondent cross-petitioner is the sole legatee under the later will, which was established in court proceedings in West Germany in 1972. Respondent cross-petitioner moved for summary judgment dismissing the petition and denying probate to the prior 1955 will. Respondent further petitions for ancillary letters c.t.a. on the basis of the 1967 will.
A Staten Island Probate Lawyer said that the court finds that judicial decrees, not administrative certificates, were rendered by courts of record in Germany in the establishment of the 1967 holographic will of the decedent. Furthermore, the ‘Certificate of Inheritance’ issued by the District Court in Germany constitutes a final decree and not merely an interlocutory determination. In addition a finding of German domicile was essential to the establishment of the 1967 will in Germany. On the basis of the recognized rules of comity, this court gives full recognition to the establishment of the 1967 will of the decedent in the German courts.
Queens Probate Lawyers said that experts in German law testified for both parties and clarified the procedure for probate of wills in Germany. Both experts agreed that the establishment of a will is a judicial court procedure and their testimony and other evidence established characteristics of such procedure. A District Court is the only element of the German State court system which deals with probate. This procedure is characterized as ‘voluntary’ rather than ‘adversary’, even though the will can be contested during this proceeding. The preliminary determination, which is a judicial decision, can be appealed to the Superior Court.
The court finds, upon undisputed testimony, that the District Court and the Superior Court are judicial courts of record which issue judicial decrees. It is true that under German law the decrees issued cannot be called ‘final judgments’ because a final judgment can only result from an ‘adversary’, not a ‘voluntary’, proceeding. It is this court’s understanding that all the proceedings to establish this will in Germany were ‘voluntary’ even though contested, and that the judicial determinations are legally effective, as is the certificate of inheritance. Indeed, the judicial decree of the Superior Court is stamped ‘final’, and is no longer subject to appeal.
With respect to the second issue, the court finds, upon consideration of the expert testimony and other evidence that the certificate of inheritance awarded to respondent cross-petitioner is not an interlocutory determination. Experts for both sides are in agreement that the decree rendered by the Superior Court is final in the sense that it cannot be appealed.
Petitioner has argued that a certificate of inheritance cannot be termed ‘final’ in the sense that it is Res judicata in New York, because it is always subject to revocation upon proof of falsity or fraud in a proceeding brought in the same District Court which issued the certificate. The undisputed testimony before this court revealed that the certificate of inheritance is given full force and effect in Germany. This court finds that the capacity of the District Court to revoke a certificate of inheritance in no way mitigates the legal effectiveness of the certificate, certainly not unless and until so revoked or recalled.
The court has also considered the effect of further litigation in the German courts which may be conducted despite the issuance of a certificate of inheritance on the authority of their District Court and Superior Court. An ‘adversary’ action may be brought in Superior Court, as a court of original jurisdiction, which is a plenary procedure concluding in the issuance of a decree or judgment which is characterized as ‘final’.
In the case at bar, the petitioner, executor of the earlier will, after instituting this proceedings before this Surrogate’s Court, made application to the Augsburg Superior Court to initiate such an ‘adversary’ action, but withdrew the action shortly thereafter, assertedly without prejudice, because costs of $39,000 were imposed as a condition. If it is still open to the petitioner to recommence, or commence De novo, such adversary action in the Superior Court, and in the unlikely event that the Superior Court should overrule itself or the Supreme Court of Bavaria should reverse the current ‘final’ ruling, then, and only then, perhaps we would be presented with newly discovered judicial ‘evidence’ superseding what is now ‘final’.
It is, therefore, quite clear that the certificate of inheritance issued to respondent cross-petitioner is legally effective and enforceable at the present time, and is no longer appealable. Furthermore, the decree of the Superior Court upholding that certificate upon appeal is a final decree and not an interlocutory decree.
The third issue upon which evidence and testimony was given at the hearing is whether a finding of German domicile was essential to the establishment of the 1967 will in Germany. The evidence submitted is conclusive that both the District Court and the Superior Court dealt thoroughly with questions of domicile and that the issue was indeed a necessary aspect of those proceedings.
The District Court took testimony and received evidence upon the question of domicile and determined that decedent was domiciled in Germany at the time of her death. Testimony of the experts on German law revealed that the concept of domicile in Germany is comparable to the concept of domicile in the United States. The Superior Court reviewed the issue of domicile as well, enlisting the aid of German experts in international law. Testimony clearly showed that it was requisite for this certificate of inheritance, as a statutory requirement, to establish domicile in West Germany. It is uncontested that a finding of such German domicile was essential to the establishment, that is to say, probate, of the later will in Germany.
In the case at bar, the evidence clearly established that the decrees of the District and Superior Courts of West Germany have been rendered by courts duly constituted under the laws of West Germany, with jurisdiction over the subject matter of the action and over the parties. The court, therefore, gives full recognition to the certificate of inheritance issued by the District Court of Aichach, Germany, and the appellate decree of the Superior Court in Augsburg, Germany, establishing the 1967 will of the decedent.