In re the Accounting of Rothenberg

Moss, S.

Incidental to the judicial settlement of their account the surviving executors seek a determination as to whether certain legacies under the will have lapsed and fixation of their attorneys’ compensation.

Testatrix by her will made certain legacies payable to Molly Zapolsky, Sarah Bielski and Morris Zapolsky, residents of the town of Slonim, Poland. By paragraph “ Seventh ” of her will, testatrix provided that in the event it shall be impossible for any of the legatees named to receive and take actual possession of his or her bequest “ by reason of any foreign law, decree, rule, decision or other regulation and by reason of any confiscatory tax or penalty imposed or other confiscation of property by any foreign country * * * then * * * such legacy or legacies shall become part of the residuum. ’ ’ The proof adduced establishes that the named legatees were residents of Slonim, Poland, during World War II and that said town was destroyed. No communications have been received from said legatees although their relatives in the United States have not changed their respective addresses which were known to said legatees. Had they been fortunate enough to make their escape to some other country, some word should have been received from them. All efforts to locate them have proved fruitless. In the absence of proof to the contrary, the court may not assume that the legatees moved to some other country from their last known place of residence in Poland.

The testatrix executed the will in 1943 and it is evident that she intended to prevent payment of any legacy which might be confiscated or interfered with in any manner by any foreign government. There is no assurance that legatees, resident of Poland will receive their bequests (Matter of Hirschberg, 203 Misc. 18, Matter of Rysiakiewicz, 114 N. Y. S. 2d 504). Therefore the court determines that the bequests to Molly Zapolsky, Sarah Bielld and Morris Zapolsky, have lapsed pursuant to paragraph “ Seventh ” of the will and pass under the residuary clause of the will (Matter of Shapiro, 201 Misc. 968; Matter of Britz, 144 Misc. 45; Matter of Koons, 206 Misc. 856).

The compensation of the attorneys is fixed and allowed in the am mint, requested as being fair and reasonable. Such compensation shall include all services rendered to and including entry of the decree and distribution thereunder. Settle order on notice.