The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
Plaintiffs have moved for the convening of a three -judge court pursuant to 28 U.S.C. §§ 2281, 2284 (1964). The motion is granted because a substantial question has been raised as to the constitutionality of a provision of a New York State statute. Appropriate reference to the Chief Judge of the Circuit will be made forthwith.
Plaintiffs are the remaindermen of a trust established under the last will and testament of Hanna Elizabeth Cosgrove, whose estate is subject to the supervision of the New York County Surrogate's Court. The life beneficiary of this trust died; and plaintiffs are now entitled, by the terms of the trust, to immediate distribution of the remainder. They are, however, residents of the Russian Occupied Zone of Germany (East Germany), to which checks drawn on the United States Treasury may not be transmitted by virtue of 31 C.F.R. § 211.2 (1968).
Section 2218 of the New York Surrogate's Court Procedure Act
establishes a procedure, applicable to certain specified situations, for the deposit into court of funds or property for the benefit of the legatee, distributee, or beneficiary of a decedent's estate being probated in the surrogate's court.
Subdivision 1(a) requires the surrogate to "direct" the deposit into court of money or property of an alien legatee, distributee, or beneficiary who is domiciled or resident within a country to which, "by reason of any executive order, regulation or similar determination," funds of the United States Treasury may not be transmitted. The money or property so deposited into court "shall be paid out only upon order of the surrogate or pursuant to the order or judgment of a court of competent jurisdiction."
Subdivision 1(b) prevents the assignee of such funds from acquiring any greater right than the alien to have the funds released.
Subsection 2 provides that, where it "shall appear that a beneficiary would not have the benefit or use or control of the money or other property due him or where other special circumstances make it desirable that such payment should be withheld", the surrogate "may direct that such money or property be paid into court" subject to the same restrictions upon release found in subsection 1.
Subsection 3 places "the burden of proving" that he would receive the benefit, use or control of the money or property upon the distributee where he is an alien not residing within the United States or its territories and "where it is uncertain" that he would have the benefit, use or control of such money or property.
The complaint alleges that section 2218, in its entirety, is unconstitutional, on its face and in application, because it encroaches upon and impairs the effective exercise of the power to conduct foreign relations and to regulate foreign commerce which is constitutionally vested in the federal government to the exclusion of the State of New York.
The complaint also alleges that subsection 1((a) and (b)), independently, is unconstitutional on its face as an infringement on the foreign affairs power, and for the additional reason that it deprives plaintiffs of their property, and the use and enjoyment of the same, in violation of the due process and equal protection clauses of the Constitution. (para. 14).
(1) the convening of a ...