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In re Siegler

Supreme Court of New York, Appellate Division

July 8, 1954

In the Matter of the Accounting of KEAN B. PANGMAN, as Executor of FRANK J. SIEGLER, Deceased, Respondent. ISTVAN TORMA, Consul General of Hungarian People's Republic in the United States of America, Acting on Behalf of ELIZABETH ZEISS and Others, Appellant; JACOB L. WILDOVE, Special Guardian for ELIZABETH ZEISS and Others, Respondent.

Page 437

APPEAL from so much of a decree of the Schoharie County Surrogate's Court (JOHNSON, S.), filed December 2, 1953, as provided that payment of certain legacies be made by depositing the amount of the legacies in the Surrogate's Court of Schoharie County for the legatees' benefit in accordance with section 269 of the Surrogate's Court Act, subject to the further order of the court.

COUNSEL

Martin Popper, Paul L. Ross and Benjamin Spiegel for appellant.

Francis L. Smith for executor, respondent.

Jacob L. Wildove, special guardian, respondent in person.

FOSTER, P. J.

This appeal has been taken by the Consul General of the Hungarian People's Republic, accredited to the United States, from a final decree of the Surrogate's Court of Schoharie County. The Consul General represents certain nationals of Hungary who are legatees under the last will and testament of Frank John Siegler, who died a resident of Schoharie County on March 20, 1952. The Surrogate, after a hearing,

Page 438

refused to direct the executor of decedent's estate to pay over to the Hungarian Consul, for transmission to the Hungarian legatees, moneys representing the legacies in question. Instead the Surrogate directed that such moneys be paid into the Surrogate's Court for the benefit of the legatees under section 269 of the Surrogate's Court Act. This section provides that such action may be taken where it appears that a legatee will not have the benefit, use or control of the money due him, or where other special circumstances made it appear desirable that payment be withheld.

The Surrogate said in his memorandum that he was not satisfied that the Hungarian nationals residing in Hungary would have the benefit, use and control of the moneys due them as contemplated by the statute cited. The Consul General argues that the decree of the Surrogate in the foregoing respect was in violation of the wishes of the legatees residing in Hungary, and also violated their constitutional rights. At the time of decedent's death there was in effect a 'Treaty of Friendship, Commerce and Consular Rights' between the United States and Hungary. This treaty was originally executed on June 24, 1925 (44 U.S. Stat. 2441--Treaty Proclaimed Oct. 4, 1926), and revived in 1947 pursuant to article X of the Treaty of Peace with Hungary. (61 U.S. Stat. 2065, 2115.) The record and briefs are silent as to whether the treaty was in effect at the time of the hearing before the Surrogate, but a footnote to Matter of Braier (305 N.Y. 148, 155) indicates that it expired July 5, 1952. The decree appealed from in this case was made December 2, 1953.

Appellant argues that the provisions of the former treaty were binding upon the Surrogate because the treaty was in effect at the time of decedent's death. It is true, under general principles too familiar to require the citation of authorities, that a treaty between this country and a foreign power becomes the supreme law of the land and any local statute must yield if there is a conflict between the two. We do not regard this appeal as presenting such an issue. The issue here is merely procedural and one of proof.

At the time the Surrogate made his decision the treaty invoked by appellant had expired, and whatever may be said as to its application to substantive rights it certainly was not binding as to merely procedural matters. The decree of the Surrogate has not deprived the Hungarian legatees of their property, and only as a matter of procedure it has been set aside for their

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benefit and account until such a time as reasonable assurance be given that they will receive it ( ...


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