144 N.Y.S. 438 | N.Y. Sur. Ct. | 1913
The testator, Constant Mayer, deceased, a resident of France, domiciled in the city of Paris, died in Paris on the 11th of
The executors named in the so-called American will filed a petition for probate of the American instrument only on September 22, 1911. Objections to such probate were next interposed by M. Jacques Henri Dreyfuss, the Grand Rabbi of France, mentioned in the French testament. On the 6th of August, 1912, Monsieur Dreyfuss filed a petition for the probate of the French testament. Objections thereto were then interposed by several of the legatees under the American testamentary writing. On the 4th of November, 1912, the several proceedings for probate were duly consolidated. On the 24th of April, 1913, an order was entered, on a stipulation in writing, directing that all objections interposed in either proceeding should be withdrawn and stand for naught, with the same effect as if such objections never had been filed. It is now conceded by all the parties before the court that the American will and the French will are duly proved, and áre both entitled to probate, and that standing together they now constitute the last will and testament of the late M. Constant Mayer.
The first French word in dispute is “notamment,” contained in the first paragraph of the French holographic testament:
“Ceci est mon testament. J’institue M. Eugéne Ouisenier mon exéeutaire testamentaire avec saisine et pouvoir de toucher seul sur sa simple signature toutes Ies sommes et créances que je pourrais posséder a mon déees, notamment toutes les sommes en dépot chez Messieurs Morgan, Harjes et Cie, banquiers á Paris. * * * ”
The testimonial evidence of the bilingual experts, duly qualified to testify, differs as to the English equivalent of notamment. Some say the true translation is including or especially; others say particularly or notably. After carefully perusing the evidence, I am satisfied that it establishes that the English word notably best conveys the more precise English meaning of “notamment.” In determining in this proceeding the script entitled to probate and enrollment, I cannot travel outside of the record, or resort to my own imperfect knowledge of such matters. I may, however, observe, without impropriety, that English-French dictionaries are in accord with my conclusion. If counsel will look at the English word notably in English-French lexicons and not for “notamment” in French-English dictionaries they will find that the English word notably is invariably translated by the French notamment. This shows at least a certain consensus of the English lexicographers. But, as I said, I do not proceed by the dictionaries which I myself have examined, but wholly by the evidence given in this proceeding.
The next word in dispute is the French word “dispositions” in the following clause of the French testament:
“Je maintiens toutes les autres ‘dispositions’ que j’ai pu faire par autre testament. * * * ”
I will go no farther in this proceeding for probate than to decree probate of the American will, and also probate of the French testament, translated in precise accordance with this opinion. I will not now determine the conflicting claims made in this proceeding to letters testamentary; nor will I now pass on the reserved objections to evidence bearing on the right to letters. I am now sitting in this proceeding for probate as a probate judge only, and I must first discharge the obligations of that jurisdiction before proceeding farther. The surrogate is not, empowered in this proceeding to decide such abstract questions (Re Tucker, 1864, 3 S. & T., 585, 586), as the right to letters. Foreseeing that such questions as the better right to letters testamentary must necessarily arise on wills in a great commercial and populous state where legal questions of refinement grow apace with the always increasing business, wealth, and population of the community, I undertook in Matter of Meyer, 72 Misc. Rep. 566, 131 N. Y. Supp. 27 cited (to me by all the parties), to outline the nature of the powers of a surrogate under the existing laws of this state. I ventured to intimate in that decision that the incidental powers of construction, inherent in the grant of general jurisdiction to the surrogate, might in the end prove to be somewhat larger than the adjudicated cases had probably contemplated, when they narrowed the surrogates’ powers of-construction to substantially two instances: Decrees of distribution in accountings and probate proceedings where construction was specially allowed to be raised under the new statute. 72 Mise. Rep. 569, 131 N. Y. Supp. 27. I then thought that it might be necessary for the surrogate to construe wills in various other proceedings properly in this court.
A fair copy of the proposed decree of probate only, having annexed to it the English translation of the French testament, made in accordance with this opinion, should be next settled on due notice.- Any party may serve such proposed decree. Proceed accordingly.