Mackarus Estate

41 Pa. D. & C.2d 259
Pennsylvania Orphans' Court, Philadelphia County·Decided September 20, 1965·No. No. 2; no. 3494 of 1962·Published·Cited by 1 cases

Opinion

Burke, J.,

Marie Korol Budnik and Marina Korol Budnik, nationals of the U.S.S.R. residing in Volynskaya Province, Ukraine, claim to be decedent’s nieces and next of kin, and appear by their attorneys in fact, Wolf, Popper, Ross, Wolf and Jones, Esqs., of the New York bar.

Ostroff, Lawler and Baker, Esqs., of this bar, who were designated by the attorneys in fact to present the claims, presented a petition on May 21, 1965, for citation to adverse parties to show cause why claimants “should not be allowed to use the procedural devices of depositions, or file interrogatories, commissions and/or letters rogatory”. This petition was referred to me as auditing judge for consideration and disposition.

It appears from the record that Ostroff, Lawler and Baker, Esqs., presented a similar petition on June 12, 1964, to take claimants’ testimony before the American Consul in Moscow. Answers to this petition were filed by the administrator, by the Commonwealth of Pennsylvania, and by the United States Attorney on behalf of the General Post Fund. All respondents ob[261]*261jected that to allow such depositions would make it impossible for them to protect their respective interests. In an opinion by Judge Bolger filed on February 5, 1965, the court dismissed the petition without deciding the issues because the petition failed to satisfy the requirements of pertinent statutes and our rules of court. Leave, however, was allowed to claimants to file an amended petition within 60 days.

No amended petition was filed within the time stipulated in the court’s decree. Long after the 60-day period had expired, counsel for claimants presented the petition which is now before the court for disposition.

In the second petition, counsel states that “claimants have not signed this petition for the additional reason that the forwarding of a petition of this nature to the clients would require them to take the affidavit before a local notary public and have the notary’s power to act authenticated before the American Consul in Moscow. From experience [the petition continues] this procedure takes several months and would be an undue and unnecessary delay and entail great expense in order to obtain such procedural relief”. This averment, of course, is an attempt to explain claimants’ failure to sign and verify the petition in compliance with Philadelphia Orphans’ Court Rule *34.1 (b). As this court said recently in Christo Estate, 36 D. & C. 2d 366, in which the same law firm appéared under similar circumstances for a nonresident claimant living in Albania: “We cannot accept (counsel’s) explanation for the failure of the widow to sign the petition. Under the circumstances of this case, we will insist that the petition be executed by (the claimant), personally”.

Petitioners take the position that a commission or letters rogatory is a “legal procedure” to which claimants are entitled as a matter of right. Such, however, [262]*262is not the law. To allow the testimony of a witness in a foreign country to be obtained through a commission or letters rogatory is a matter of judicial discretion and is to be allowed only in the interest of justice in a proper case when safeguards have been provided to protect the adverse parties: Garrett’s Estate, 335 Pa. 287; Link’s Estate (No. 1), 319 Pa. 513; Martinzik Estate, 25 D. & C. 2d 701; Sochanczak Estate, 29 D. & C. 2d 609; Zaremba Estate, 34 D. & C. 2d 721. Such safeguards in this estate are impossible because no confidence can be placed at this time in any Soviet tribunal or official designated to execute a commission.

All of the evidence submitted by claimants at the audit in this estate is documentary designed to prove facts purporting to appear in public records in the U.S.S.R. None of these documents is a copy of the original record, and it is obvious that all were prepared from information gathered from other sources. Soviet documents designed to establish kinship in order to obtain the estates of foreign domiciliaries are suspect and must be regarded with the utmost caution. Documents made post litem motam will not be admitted unless the court is absolutely certain that the source of information is untainted and the facts upon which the record is based have been established beyond doubt as unimpeachable, impartial and trustworthy: Malika Estate, 31 D. & C. 2d 736. To allow a commission or letters rogatory in this estate would elicit from Soviet sources only such testimony as would best suit their purposes without regard to the truth, and would be no more trustworthy than the documents submitted at the audit.

Accordingly, we enter the following

Decree

Now, September 20, 1965, the petition of Isidor Ostroff and James Francis Lawler, Esqs., attorneys for [263]*263Maria Moiseovna Korol Budnik and Marina Moiseovna Korol Budnik for citation “to use the procedural devices of depositions, or file interrogatories, commissions and/or letters rogatory” is dismissed.

November 10, 1966.

Opinion Sur Exceptions

Lefever, J.,

On January 5, 1962, Samuel Mackarus, an immigrant from Russia, who served in the United States Army in World War I, died intestate in a United States veterans’ hospital. He had been adjudicated incompetent by the Philadelphia Common Pleas Court on February 28, 1921. His substantial estate consisted principally of benefits paid to him and his guardian during the more than 40 years that he was a patient in various veterans’ hospitals. By adjudication dated September 20, 1965, Judge Burke decided that the identity of the two alleged nieces claimed to be his closest of kin, who allegedly live in Volynskoya Province, Ukraine, U.S.S.R., was not proved, and he awarded the net principal and income of decedent’s estate, totalling $82,782, to the Commonwealth of Pennsylvania under section 1314 of The Fiscal Code of April 9, 1929, P. L. 343, “without escheat, and without prejudice to the rights of all claimants in future proceedings to establish their claims according to law”.

On June 12, 1964, the law firm of Ostroff, Lawler & Baker filed a petition in which petitioners were “Ostroff, Lawler & Baker, attorneys for Maria Moiseevna Korol Budnik and Marine Moiseevna Korol Budnick [sic], nieces of the decedent”. The petition was signed “Ostroff, Lawler & Baker, by James Francis Lawler”, and the affidavit to the petition was signed by James Francis Lawler. In due course, a citation was issued and served; an answer was filed by the administrator of decedent’s estate; answers and new matter were filed by Herbert W. Salus, Jr., Special Assistant Attorney General for the Commonwealth of Pennsylvania [264]*264and by the United States of America; and replies to the answers and new matter were filed by Ostroff, Lawler & Baker. Argument thereon was heard by this court en banc. Under date of February 5, 1965, Judge Bolger filed an opinion for a unanimous court in which the petition was dismissed “without prejudice and with leave to the claimants to file an amended petition within sixty days”: Mackarus Estate (No. 1), 41 D. & C. 2d 257. No such amended petition was filed.

On May 21, 1965, the law firm of Ostroff & Lawler, successor firm to Ostroff, Lawler & Baker, filed with the court at the regular weekly motion list a “Petition for Citation to Use Procedural Devices of Depositions, or File Interrogatories, Commissions and/or Letters Rogatory”.

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Mackarus Estate, 41 Pa. D. & C.2d 259 (Pa. Super. Ct. 1965).

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