Sultan of Turkey v. Tiryakian, 147 N.Y.S. 978

Sultan of Turkey v. Tiryakian

147 N.Y.S. 978 | N.Y. App. Div. | 1914

Laughlin, J.:

This is an action to recover $10,000 together with interest thereon from the 29th day of October, 1907, being the proceeds of two policies of life insurance bequeathed by one Hovhannes Tavshanjian by last will and testament to his mother, Mannig Tavshanjian. It is alleged that the testator left assets more than sufficient to pay his debts and all of his legacies, and that his debts have already been paid in full and that the amounts payable on the insurance policies were collected by the defendants as his executor and executrix. The demurrer is upon the ground that the complaint fails to state facts sufficient to constitute a cause of action, and the point presented is whether the plaintiff shows a right to receive the fund in question.

It is alleged that the legatee, Mannig Tavshanjian, was a resident and subject of Turkey, and died on the 7th day of March, 1911, without having personally or by any one thereunto authorized in her behalf received the legacy. A demurrer to the first amended complaint was sustained by the trial court on the ground that the plaintiff failed to show his title or a right to possession of the fund, and that decision was affirmed by this court without opinion. (159 App. Div. 908.) On that point, however, the former complaint merely alleged generally *615that by the laws of Turkey the department of justice “must assume physical control of all the property and estate ” of the deceased legatee “and distribute it according to the Domestic Relations Law of the land, which requires the heirs and other persons entitled to any part of such property and estate to appear before the court at the place where the deceased departed this life and prove their claims.” The present complaint sets forth a translation of the statutory law of Turkey making it the duty of certain officials of the department of justice to,register, inventory and administer the estate of deceased persons by selling and converting their property into money and deducting certain legal fees and paying the debts and distributing the surplus to the heirs or depositing the same for their benefit as therein provided. It is also alleged that by the laws of Turkey, immediately upon the death of a subject the legal title to his estate vests in His Majesty the Sultan of Turkey, and that the Sheik-Ul-Islamat, who is invested by the plaintiff with exclusive jurisdiction and power concerning the construction and administration of all laws pertaining to religion and domestic relations “ must assume physical control of all the property and estate” of a deceased subject, and distribute it according to the domestic relations law of Turkey, which requires the heirs and other persons who may claim any part of the estate to appear before the court at the place where the deceased person departed this life and prove their claim.

It was stated on the argument that the law under which His Majesty the Sultan of Turkey takes the title and right to possession of the estate of his deceased subjects for the purpose of having it so administered is not in writing, but that it has been the unwritten law of that country for many centuries.

I am of opinion that the plaintiff has now sufficiently alleged his right to recover the possession of the fund in question for the purpose of administering it according to the laws of Turkey. It is entirely competent for any sovereignty to provide by law that it shall have the right to take possession of the property of its citizens and to administer it according to the law of the land; and that, in effect, is what all sovereigns do. It is a well-settled general rule of international law that the succession to *616personal property depends upon the law of the domicile of the decedent. (Wheat. Internat. Law [4th ed.], § 83; Whart. Confl. Laws [2d ed.], §§ 551, 555, 556, 557, 558 and cases cited.) Heirs and next of kin have no inalienable right to inherit; and it is upon this principle that the tax upon the transfer of property upon the death of the owner has been sustained. (Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; Matter of Dows, 167 N. Y. 227; affd., sub nom. Orr v. Gilman, 183 U. S. 278.) In the case at bar the statutory law of Turkey, set forth in the second amended complaint, sufficiently shows the right of the government to the possession of the personal property of a deceased subject, and by the unwritten law pleaded in general terms the right to such possession, if not to the title to the property, is sufficiently pleaded, for manifestly it is permissible to plead the legal effect of unwritten law. The sufficiency of .the allegations of the complaint to entitle the plaintiff to recover the fund is not, I think, affected by the fact that the plaintiff after alleging legal title sets forth laws under which the property is to be distributed, for it is immaterial to the plaintiff’s right to possession whether he takes the legal title or only the possession for the purpose of distributing the fund, in accordance with the laws of the country of which he is the ruler. It is not to be presumed that there are any local creditors here of the foreign legatee, which requires the administration of any part of the fund; and in such case if the legacy were to a resident of a sister State and the legatee died and was represented by an administrator the property would be directed to such administrator for administration. (Matter of Mercure, 1 Tuck. 288.) That in effect is what the plaintiff seeks here.

It follows that the interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, with leave to defendants to withdraw the demurrer and answer on payment of the costs of the appeal and of the demurrer.

Ingraham, P. J., Clarke, Scott and Dowling, JJ., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendants to withdraw demurrer and to answer on payment of costs in this court and in the court below.