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IN RE HORLER

July 7, 1992

In re Application of ADOLF HORLER to take the testimony of certain persons for use in a probate proceeding pending in Oberengadin, Switzerland, pursuant to 28 U.S.C. § 1782


The opinion of the court was delivered by: CHARLES L. BRIEANT

 (Part I)

 Brieant, Chief Judge

 By motion fully submitted on April 21, 1992, applicant Adolf Horler moves to compel two New York attorneys to produce certain documents in connection with a foreign probate proceeding. The Court will briefly summarize the tangled history of this litigation, which, the reader is warned, in some respects resembles the plot of a "Dynasty" episode; in others, regrettably, it recalls the infamous case of Jarndyce v. Jarndyce, first reported in the pages of Charles Dickens' Bleak House.

 On June 14, 1989, Count Corrado Agusta died at the age of sixty-five. From 1971 to 1983, the Count had served as chairman of Gruppa Agusta, a successful helicopter construction company started by his grandfather. At the time of his death, the Count was an Italian citizen domiciled in St. Moritz, Switzerland. The Count was survived by his second wife, Countess Francesca Vacca Agusta-Grafagni, from whom he had received a separation decree in Italy in 1985, and by his son by his first marriage, Riccardo Agusta. Countess Agusta is also a citizen of Italy, but resides in Mexico, while Riccardo Agusta is an Italian citizen currently residing in Monte Carlo.

 The Count's last Will and Testament, executed on November 11, 1988, appoints Dr. Hans Jurgi Zinsli of St. Moritz as executor of his estate, and specifically recites that it is subject to Swiss law. The Will bequeaths the Count's entire estate to his son, Riccardo Agusta. The state of relations between the Count and his estranged second wife can be gathered from the second paragraph of that instrument:

 "I also dispose that my wife, FRANCESCA VACCA AGUSTAGRAFAGNI, born October 29th, 1942, Italian citizen, resident in Mexico, and from whom I am legally separated, be disinherited in the event that at the time of my death, she be my heir.

 This disinheritance is motivated by the fact that the said Person named above has circulated numerous defamatory and slanderous statements about me, particularly in Italy, in Switzerland and in the United States of America and that she is looking for and threatening new ways to harass me and cause me prejudice with a view to collecting monies that are not due to her". Ex. 1 to April 21 Sonnenfeld Affidavit.

 The Count and Countess were, apparently, no strangers to the courtroom. Before the Count's death, the Countess had sued in Supreme Court, New York County, in 1988 to impress a trust on a Fifth Avenue apartment owned by a Panamanian corporation allegedly controlled by the Count. The Court infers from counsel's statement at the argument of this motion that this litigation was resolved in the Count's favor; the Countess has apparently appealed, but that appeal has been automatically stayed due to the Count's death, and failure to appoint a representative to defend for his estate. See April 21 Tr. at 19.

 Not surprisingly, the Count's death and the appearance of this Will escalated the family dispute to a new level--to the detriment of the dockets of at least nine courts in six nations. The Countess first elected to contest the Will in Italy; she avers that Italian law grants her some interest in the Estate of her deceased husband, irrespective of the decedent's wishes, and similar, perhaps, to an elective share in New York. Riccardo Agusta claims, by contrast, that the 1985 Italian separation decree extinguishes any rights the Countess may have had in the Count's Estate. The current status of this litigation is unclear.

 The Countess has also contested the Will in Switzerland, where it has apparently been offered for probate. Counsel were unable entirely to clarify how a Will could be offered for probate in one country while it is being "contested" in another, but inform the Court that there is a treaty between Switzerland and Italy permitting this procedure.

 In any event, the Countess also moved successfully in the Swiss probate court to suspend Dr. Zinsli as executor. Although this suspension seems to have been reversed, on July 20, 1989, Judge Lazzarini of the Probate Court of Oberengadin, Switzerland ("Kreisamt Oberengadin") appointed the applicant, Mr. Adolf Horler, to inventory the assets of the Count's estate. Mr. Horler is an attorney and Notary in St. Moritz. Mr. Horler's attorneys describe his role as follows:

 "Under Swiss law, a Notary who is appointed to inventory the assets of an estate has the right and duty to locate and collect such assets on a worldwide basis and must file a report with the Probate Court which appointed him". November 1 Schurtman Declaration at P 4.

 Mr. Horler was subsequently appointed by the same court, on August 23, 1989, as the Official Administrator of the Estate. November 1 Schurtman Declaration at P 5. That designation, of course, has been appealed in the Swiss courts by Riccardo Agusta, and the resolution of this appeal appears nowhere in the record.

 To complete the description of what might be termed the eastern front of this litigation, the Swiss courts have, on the Countess' application, sealed access to the Count's villa in Switzerland, and the French and German ...


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