In re the Accounting of Brown — 28 Misc. 2d 655

Majority

p. 655

In the Matter of the Accounting of Selma Brown et al., as Executors of Emil Geiger, Deceased.

Surrogate’s Court, Nassau County,

April 24, 1961.

p. 656

Theodore Ornstein and Edward Elman for petitioners. Walter S. Eoernberg for Clarence Simon and others. Joseph Trachtman for Dorothy T. Tanzer, as executrix. Bernays <3 Eisner, former attorneys for Dorothy T. Tanzer, as executrix. Sidney B. Alexander for Jerome H. Friedman and another. Max Blecher, Jr., for Peter A. Weiner. Gusik <3 Boukstein for Vice Consul of State of Israel. Wolf Popper Boss Wolf $ J ones for Ladislau Geiger. Carl Bachlin and Lester Migdal for Paul Wiener. Joseph Caputo, as special guardian for Miklos Geiger and others, and for all unknown distributees. TJjlaki «3 Allen for Clarisse Gustav and others.

In this accounting proceeding, a hearing was held to determine whether one of the residuary beneficiaries, Miklos Geiger and his issue, predeceased the testator. A number of affidavits and correspondence, together with an unauthenticated declaration of deaths by the City Court of Debrecen, Hungary, has been submitted to establish the deaths of Miklos Geiger, his wife, and issue. The special guardian’s objections to the acceptance of these papers and documents into evidence must, on the present state of the record, be sustained since the finding of deaths by the foreign court is unauthenticated, and the correspondence and affidavits are hearsay statements not subject to cross-examination.

The judgment of August 23,1956, in the Supreme Court action is not res judicata on the question of the deaths of Miklos Geiger and his issue, since it does not appear that either he or his issue were parties to that action. However, the court is of the opinion that an opportunity should be afforded the parties to authenticate the declaration of deaths by the foreign court (see Bichardson, Evidence [8th ed.j, § 633), and for such purposes application should be made for a further hearing. In addition, there should be considered the advisability of obtaining an expert in Hungarian law to testify to the law of that country governing the practice and procedure in declarations of death (see Matter of Kohn, 124 N. Y. S. 2d 861 ).