Bertin's Estate

Opinion by

Me. Justice Mesteezat,

We agree entirely with the conclusion of the learned court below, and that it entered a proper decree under the facts and law applicable to the case. The question involved is not one of jurisdiction, but of the proper exercise of the discretionary power of the court to require the claimant, under the facts, to establish the validity of her legacy in the domiciliary jurisdiction before the ancillary jurisdiction will direct its payment out of the fund for distribution in this proceeding. In Dent’s Appeal, 22 Pa. 514, 520, it is said: “But it must be remember ed that this is not a question of jurisdiction, but merely one of judicial discretion.......From these authorities it is clear that the Orphans’ Court had a right to exercise its discretion in deciding whether it would distribute the fund itself, among the parties entitled to it, or remit it to the forum of domicile for the purpose. And the question before us is, whether there has been such an unwise exercise of that discretion as to justify a court of review in reversing the decree.”

In the exhaustive opinion filed by the learned auditing judge it is said, inter alia: “It would seem to the auditing judge, therefore, after careful consideration of the authorities, a proper exercise of discretion to require that this matter be referred to the courts of the domicile so that an authoritative decree might be obtained under that law as to the rights of the claimant, especially in view of the fact that both at the time of the making of the will and of the testatrix’s death, and for some time thereafter, the present claimant was resident, if not domiciled, in Paris, where the will was probated and by the public probate was put upon notice of its contents and could without extra trouble and costs have made her claim to intervene in the courts of the domicile. Her present situation as a resident of this country grows out of her voluntary act in leaving the place of the testatrix’s domicile since her death, and the hardship if there be any would seem quite as grievous upon the universal heir to defend against the claim here.”

The facts of this case, as pointed out in the adjudication, clearly justified the action of the court below. Madame Helen Malcolmson Serrill Bertin, the testatrix, since her marriage in Philadelphia in 1890 had resided in and was a citizen of France, where she died in February, 1910. Julia Acly, a citizen of this country and the claimant in this proceeding, went to Paris in 1892 after the death of her parents, and remained there engaged most of the time in educational work until the autumn of 1911, except about seven months in the year 1905 which she spent in this country. After her return to Paris she was employed by the testatrix on a salary for eighteen months. She was never a citizen or resident of this State. It is apparent that the appellant had the opportunity to have her claim adjudicated by the proper domiciliary tribunal of France while she was a resident of Paris. The law of the domicile governs the distribution of 'a decedent’s personal estate, and the validity of the appellant’s legacy must, therefore, be determined under the law of France. Instead of asserting her claim in the forum of the domicile, she left that jurisdiction and came here to have our courts interpret the French law applicable to the distribution of decedents’ estates. We are not asked to construe the law of a sister state, written in our own language, with which the courts of the other states are more or less familiar. This we have done and in the exercise of a proper discretion will continue to do in the distribution of a decedent’s estate under ancillary proceedings. Here, the appellant’s claim must be adjudged by the French Code, which necessarily requires a knowledge of the French language as well as of the French law, or that the court interpret a translation instead of the original instrument. Courts are not presumed to know a foreign language sufficiently well to translate it without the aid of an interpreter and adjudicate the rights of litigants depending on the construction of a legal instrument written in the language. The claimant called as a witness a member of the New York Bar, familiar with the English and French languages, who translated the will and codicil executed in French by Madame Bertin, the testatrix, and also certain provisions of the French Code regulating the disposition of decedents’ estates. She also called a French barrister to prove the French law regulating the civil rights of husband and wife where they have been ' married under the law of separate estates, and the law as to wills and codicils which determines the validity of the appellant’s legacy. The appellee offered to produce similar expert testimony to sustain her contention and to defeat the appellant’s claim. Had the court determined the validity of the appellant’s legacy under the testimony, the rights of the parties would have depended, not on the court’s interpretation and application of the law ruling the case, but on the court’s opinion as to which of the witnesses correctly translated the will and codicil and correctly interpreted the French Code. The necessity of remitting the appellant’s claim to the courts of the domicile for an authoritative adjudication is too apparent, we think, to require further discussion.

The decree entered by the Orphans’ Court does not offend the Act of March 31, 1905, P. L. 91. It retains a fund sufficient to meet the appellant’s legacy in the hands of the accountant to await the decision of the French court. When a decision has been made, the court of ancillary jurisdiction will distribute the fund to the party legally entitled thereto. The act provides that the personal representative “shall not be required to deliver to any foreign executor or administrator any fund...... But such fund shall be distributed under the direction of the Orphans’ Court.This was the practice in the Orphans’ Court at the date of the enactment, and hence the act was simply declaratory of the existing law. There is nothing in the act which prohibits the Orphans’ Court from withholding distribution until the court of the foreign domicile has determined the validity of the claim -under the laws of that jurisdiction. The ancillary court may proceed at once to determine the legality of the claim and make distribution, but the act does not require it. If the court shohld be of opinion that a proper distribution of the fund can only be made after an adjudication of the validity of the claim by the courts of the domicile, the postponement of the distribution for that purpose would be the exercise of a discretion not condemned by the statute. The legislature intended by this enactment to protect citizens of the State by requiring our courts to make distribution of the fund in the hands of the ancillary administration, but it did not intend to compel the court to distribute the fund to a legatee until the validity of the legacy under the law of the domicile was duly established. This is all the decree of the court below requires, and it cannot be successfully attacked by the claimant, whether she be a citizen of this or any other state of the Union.

Decree affirmed.