In re the Estate of Bellmer

144 Misc. 462, 258 N.Y.S. 964, 1932 N.Y. Misc. LEXIS 1179

• Court: New York Surrogate's Court
• Decided: July 25, 1932
• Status: Published

Opinion

Henderson, S.

Upon this application to amend the decree settling the administrator’s account, the petitioners have submitted certain records of judicial proceedings in Germany, consisting of a decree adjudicating the death of an absentee, and a certificate of heirship. The Legislature has expressly provided that the sections of the Civil Practice Act (§§ 395, 396) regulating the admission in evidence of a copy of a record or other judicial proceeding in a foreign country shall not be construed as declaring the effect.of such record or proceeding. (Civ. Prac. Act, § 397.)

There is a presumption that the rights of the parties thereto have been determined according to the law and procedure of such-country. (Dunstan v. Higgins, 138 N. Y. 70, 74.) This presumption has not been overcome by anything in the papers submitted, nor have the proceedings been attacked on the ground of lack of jurisdiction or as fraudulently obtained. (Lazier v. Westcott, 26 N. Y. 146, 151.) These proceedings are not contrary to the policy of our own law. They should, therefore, be recognized as valid (Hilton v. Guyot, 159 U. S. 113, 130), and be received as legal evidence of the facts set forth therein. (Lazier v. Westcott, supra.)

No evidence to the contrary having been submitted, I determine that the effect of these documents is to establish the fact that Alfred Bellmer, brother of the decedent, died on the 1st day of January, 1911, intestate, leaving him surviving as his only next of kin, three sisters, the decedent; Emma Schoenninger, also known as Emma Schoninger, Emma Schoeninger and Emma Schoenniger, one of the petitioners herein; and Helen Reitze, also known as Helene Ernestine Reize.

It also appears from the petition herein that the decedent died on the 30th day of August, 1918, and that Helen Reitze died on the 29th day of January, 1919, leaving her surviving as her only next of kin, three children, the petitioners Max Reitze, Eugen Reitze and Martha Fahner.

I find that the decedent’s only next of kin were her two sisters, the said Emma Schoenninger and Helen Reitze.

Settle decree amending the decree heretofore entered herein and providing for the distribution of the amount deposited to the credit of Albert Bellmer in equal shares to Emma Schoenninger and to the legal representative of Helen Reitze,. deceased.