Opposition Brief — Wasserberger v. Rodney

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In THE

Supreme Court of the United States

Ocroser Term 1946 No. 372

In the Matter of Proving the Last Will and Testament

of Henry ALTMAYER,

Deceased,

as a Will of Real and Personal Property.

Emu H. WasseRsBercer,

Petitioner,

v.

Beatrice AttMAyeR Ropney,

Respondent,

and

Donatp T. Mutianeg,

Special Guardian.

AFFIDAVIT AND BRIEF OF RESPONDENT IN OPPO.-

SITION TO PETITION FOR WRIT OF CERTIORARI

VauUGHAN AND Lyons,

/ Attorneys for Respondent.

JaMEs N. VAvGHAN,

of Counsel.

INDEX

Arrmavit 1x Oppostrion with Exurpits ..........

Beane GR. RAID ook oc dcccdkh vawees 00s eer

Point I.—Essentials decisive of present application

for writ of certiorari and requiring denial

ONOER ok vanes bk cc naccsedvedbewh vase c¥es

Porst II.—No constitutional questions were passed

on below in the course of a ‘‘Rehearing”’ .....

Port I1I.—Detailed demonstration that there was

absolute procedural and substantive regularity

Oe Ge CUO BT on nv ccdeansscheen sesuccacs

Porrt [V.—Answers to certain particulars in Mr.

Wasserberger’s present claims ...............

Poryst V.—Mr. Wasserberger by his own act set up

the order of the Appellate Division so that it

might be reviewed on the facts precisely as hap-

pened in the Court of Appeals ................

Porrst VI.—Mr. Wasserberger expressly, in terms,

anticipated the very action taken by the high-

est Court of Appeals in making its final judg-

MR nc ccccccceccnccnccetessasesccasascasaes

Porrst VII.—The ‘‘facts’’ of Mr. Wasserberger are

not facts; and even the actual evidentiary facts

leading to the result below are presently imma-

WOME ance kcwadscccnccescscncaccccueccscacacs

Pornt VIII.—Collateral facts warrant a direction by

this Court that the respondent should be al-

Se SEE GE Na cacnduccdacsaeassccdwaen

Ue dos ocak a cecapecel acca

I lean Cee cds < Chea ka cackuaebawer tkcun

15

16

17

pe Kinley CO ARAB BELLE TAL BN eH

ere

TasBLe or CasEs

PAGE

Aerated Products Co. v..Godfrey, 290 N. Y. 92, 95

SEED GhasndesacveshbuGeshlances sabes tabskse 27

American Surety Co. v. Baldwin, 240 U. S. 240

CUE ‘otndhecdns Gokeehactsqgeebak nhs cenheens i6

Consolidated Turnpike Company v. The Norfolk,

ete. Ry. Co., 228 U. S. 326 (1913) ............. 16

Corkran Oil & Development Co. v. Arnaudet, 199

Wie As SE UI Niccin 5.06 db acendctinaneaceedeses 16

Forbes v. State Council of Virginia, 216 U. S. 396

CEE css nndenceckus vb0s peendmuahsteccedndas 16

Fullerton v. Texas, 196 U. S. 192 (1905) .......... 16, 17

Hart v. Blabey, 287 N. Y. 257 (1942) .............. 27

Helis v. Ward, 308 U. S. 365 (1939) ............... 16

McCorquodale v. State of Texas, 211 U. S. 482

SEE KC cd SeWGhSGLcKUn a cbbdbabsuhvacebacians 16

MeMillen v. Ferrum Mining Co., 197 U. S. 343

TEL. sass dhbkiecinh ows SeNNEbE eis WER teks 16

Pocketbooks, Inc. v. Meyers, 292 N. Y. 58, 61 (1944) 27

St. Louis & San Francisco R.R. Co. v. Shepherd, 240

oa Ne CUED 6 Se GS 0s pewwpns i iciedNevaweds 16

Matter of Staiger, 243 N. Y. 468 (1926) ........... 19

TABLE OF STATUTES

United States Code, Title 28

§344 (b) (Judicial Code §237, amended) .... 20

)

Se Ol. cughwnnakeees ohe ka Ren deaceeonenes 30

SER Akiba Soe en beste cb bnewekeccs ean tonncgns 30

Surrogate’s Court Act

ST Seta gba ke-tacbscentieaubass seqpenbonees 21

New York Civil Practice Act

BEY Shek ecbeesadegecnccasceqnscuasenuneeee 30

DE FL tb veh abnenehhkeeeesektens su eqeweeune 22

DE ku ahinededdduntecccessedsencendiuas 22, 26, 28

New York State Constitution

Article 6, §7

Affidavit of James N. Vaughan.

IN THE

Supreme Court of the United States

Octroser Term 1946 No. 372

»™

¥

In the Matter of Proving the Last Will and Testament

of Henry ALTMAYER,

Deceased,

as a Will of Real and Personal Property.

Emi H. WassERBERGER,

Petitioner,

v.

Beatrice ALTMAYER Ropney,

Respondent,

and

Donatp T. MULLANE,

Special Guardian.

>

Srate or New York ns

s

County or New York

James N. VaueHan, being duly sworn, deposes and

Says:

1. I am a lawyer duly admitted to practice in all the

Courts of New York State. I am also admitted to prac-

ose. ne oe ee ree eran: @ mereEner ote

UM BD 6

a ERLE

2

Affidavit of James N. Vaughan.

tice before this Court. I represent the respondent on

the present application for a writ of certiorari.

2. The respondent engaged my services in the first

instance after the reversal of the Surrogate’s decree by

the Appellate Division of the Supreme Court. I am there-

fore personally familiar with the facts hereinafter set

forth since I have continuously represented her since that

time.

3. The first order of the Appellate Division was dated

the 27th day of June, 1945. A copy thereof is annexed

hereto and marked Exhibit A. This order was not en-

tered until the 14th day of August, 1945. My client

thereafter duly noticed an appeal from said order. Said

notice was served on or about September 19, 1945.

4. On notice dated September 27, 1945 the successful

party in the Appellete Division, namely, Mr. Wasser-

berger moved that Court for resettlement of its order of

reversal. To support the motion an affidavit was made,

served and filed by Lawrence S. Timen. Copy of said affi-

davit dated the 27th day of September, 1945 and sworn

to before Mr. Wasserberger is annexed hereto and marked

Exhibit B.

5. I made an affidavit in this proceeding dated March

1, 1946, a copy of which is annexed hereto and marked

Exhibit C.

6. The sequel to the final decision by the Court of Ap-

peals on the merits follows:

January 22, 1946 the remittitur was filed with the

Clerk of the Surrogate’s Court, New York County

(the decision of the Court of Appeals having been

published in the New York Law Journal January 19,

1946).

WIE TIE Nee .

3

Affidavit of James N. Vaughan.

February 20, 1946, with the express consent of Mr.

Wasserberger and the Special Guardian, the Sur-

rogate’s Court by order reinstated the Letters of Ad-

ministration originally issued to my client but re-

voked following the reversal in the Appellate Di-

vision.

March 22, 1946 a decree on remittitur was made

fully effectuating the determination in the Court of

Appeals and also fixing costs and counsel fees for

Mr. Wasserberger and the Special Guardian. Mr.

Wasserberger claimed as his compensation for

prosecuting his appeals unsuccessfully the sum of

$25,000. He was allowed $2,500.

March 23, 1946 my client as Administratrix paid

through me to Mr. Wasserberger his costs and dis-

bursements in the sum of $423.34.

April 3, 1946 notice of motion in the Court of

Appeals for reargument and to amend the remit-

tutur was served.

April 18, 1946 the motion for reargument was

denied.

April 23, 1946 Mr. Wasserberger noticed an appeal

to the Appellate Division from so much of the de-

cree on remittitur as fixed his allowance for counsel

fees in the sum of $2,500.

I later duly made a motion to dismiss the last men-

tioned appeal for failure to make the case and to

bond the appeal. This motion was granted to the

extent of requiring Mr. Wasserberger to file the re-

quired undertaking, make the case and notice the

appeal for argument on a date stated by the Appel-

late Division. The appeal has been noticed for argu-

ment September 27, 1946.

a

a

Affidavit of James N. Vaughan.

On July 11, 1946 Associate Justice Reed made an

order ex parte extending Mr. Wasserberger’s time

to apply for a writ of certiorari to August 7, 1946.

August 6, 1946 petition for writ of certiorari was

filed in the Supreme Court.

August 15, 1946 copy of the transcript of record,

petition and brief were served on _ respondent’s

counsel,

JaMES N. VAUGHAN.

Sworn to before me this

7th day of September, 1946.

Jessie L. NAPOLETANO,

Notary Public,

. Bronx County.

Bronx Co. Clk’s No. 27, Reg. No. 69-N-7.

New York Co. Clk’s No. 251, Reg. No. 210-N-7.

Kings Co. Clk’s No. 21, Reg. No. 161-N-7.

Queens Co. Clk’s No. 2164, Reg. No. 112-N-7.

Commission Expires March 30, 1947.

~~ A ee -

5

Exhibit A.

At a term of the Appellate Division of the

Supreme Court held in and for the First

Judicial Department in the County of New

York, on the 27th day of June, 1945.

Present: Hon. Francis Martin, P. J.

‘¢ Atrrep H. Town ey,

‘* Epwarp J. GLEnnon,

‘* ALBERT CoHN,

‘¢ JosepH M. CaLuaHan.

In the Matter of Prdving the Last Will

and Testament of

Henry ALTMAYER,

Deceased,

as a Will of Real and Personal Property. 15651

Orper oF Re-

ss VERSAL ON Ap-

Emit H. WasserBercer, PEAL FROM

Proponent-Appellant, SURROGATE

Beatrice Ropney ALTMAYER,

Objectant-Respondent,

Donatp T. Mutiang,

Special Guardian-Respondent.

An appeal having been taken to this Court by pro-

ponent-appellant Emm H. Wassersercer, from so much of

a decree of the Surrogate’s Court of the County of New

York, entered in the Surrogate’s Court on the 23rd day

of June, 1944, as denies probate of a carbon copy of an

instrument alleged to be a will dated May 1, 1937, and

said appeal having been argued by Mr. Lawrence §.

Timon, of counsel for the appellant, and by Mr. George

6

Exhibit A.

Feinberg, of counsel for the objectant-respondent, and by

Mr. Donald T. Mullane, special guardian-respondent, pro

se; and due deliberation having been had thereon, it is

hereby unanimously

OrpeRED and apsupGED that the said decree so far as

appealed from be and the same is hereby, in all things re-

versed upon questions of fact and of law, with costs to

the appellant Emil H. Wasserberger and to the special

guardian, Donald T. Mullane, payable out of the estate,

and it is further

ORDERED, ADJUDGED and DECREED that the carbon copy

of an instrument propounded as decedent’s will dated May

1, 1937, be and the same hereby is admitted to probate

as the Last Will and Testament of Henry Altmayer, De-

ceased, and the proceeding remitted to the Surrogate of

the County of New York for further action in accordance

with the opinion of this Court.

Enter,

Exhibit B.

APPELLATE DIVISION OF THE SUPREME COURT

Fist JupiciaL DEPARTMENT

In the Matter of Proving the Last Will

and Testament of

Henry ALTMAYER,

Deceased,

as a Will of Real and Personal Property.

Emi H. WasserRBERGER,

Proponent-Appellant,

Beatrice Ropney ALTMAYER,

Objectant-Respondent,

Donato T. Mutiang,

Special Guardian-Respondent.

State or New Yorke

8s.:

County or New York

Lawrence S. Tien, being duly sworn, deposes and

Says:

I am of counsel for the proponent-appellant herein as-

sociated with Epwry B. Wotcuox, Esq., attorney of rec-

ord for said appellant.

This is an application to resettle the order of reversal

on appeal from the Surrogate of the County of New York,

which said order was entered and filed in the office of

the Clerk of this Court on August 14, 1945.

The application for resettlement is made for the rea-

son that the said order as made and entered herein con-

ee

8

Exhibit B.

tains a statement that the reversal was upon the law and

the facts but fails to specify, as required by Section 602

of the Civil Practice Act, the findings of fact of the court

below which was reversed or modified and the new find-

ings made by the Appellate Division.

The order of reversal was made not only upon the law,

but upon the facts, and the order so states. The salient

facts upon which the Surrogate was reversed are that

after its execution, the will was placed in a safe deposit

box of the Manufacturers Trust Company subject to the

joint control of the deceased and the contestant, and that

the will remained in the box up to at ieast the early part

of January 1944; that the deceased died on February 1,

1944, and that the only person who had access to the box

where the will was deposited after deceased was bed-

ridden for several months prior to his death, was the con-

testant. Since this Court found as a fact that the will

was in the box in January 1944, within a month of tes-

tator’s death, and that the only person who had access to

the box during the several months decedent was bed-

ridden, was the contestant, it necessarily follows as a fact

that the will was in existence in the said box at the time

of decedent’s death or was fraudulently destroyed during

his lifetime.

The findings of fact contained in the decision of the

Surrogate are precisely to the contrary, and the Surrv-

gate’s findings are therefore reversed by the findings of

this Court.

Under the last sentence contained in Section 602 of

the Civil Practice Act, the proponent would be prejudiced

unless the order were resettled to specify the findings of

this Court and the findings of the court below which were

reversed in that in the absence of such specification, there

would be a presumption in the Court of Appeals, upon

9

Exhibit B.

appeal to that Court, that finding of fact made by the

Surrogate that the will could not be found at testator’s

death, was affirmed and that the reversal in this Court

was upon questions of law only.

This is particularly signifieant in view of the fact

that the contestant urged a proposition of law in the

court below and in this court that by reason of the non-

production of the will by proponent there arises a pre-

sumption that the testator destroyed his will with intent

to revoke. However, the finding of fact in this Court

that the will was in existence at the time of the dece-

dent’s death or was fraudulently destroyed during his

lifetime destroys the basis upon which the presumption

depends. Consequently, unless the order on reversal sets

forth the facts found by this Court showing that the will

was in existence at the time of decedent’s death or was

fraudulently destroyed during his lifetime, the Court of

Appeals will presume that the reversal was upon ques-

tions of law only.

Resettlement is therefore asked so that if the Court

of Appeals deems fit to sustain the presumption of de-

struction animo revocandi urged by the contestant in

this Court and in the court below, it would need to do so

only after reviewing the facts and reversing the findings

of fact made in this Court, instead of presuming that

this Court agreed with the Surrogate that the will could

not be found at the time of the testator’s death.

An appeal has now been taken to the Court of Appeals

from the order of reversal herein by notice of appeal

dated September 18, 1945 and served September 19, 1945.

It is accordingly requested that the said order be resettled

nune pro tune without prejudice to any of the proceed-

ings taken thereafter.

10

Exhibit B.

Wuenrerore, deponent prays that said order of reversal

be resettled accordingly.

Lawrence 8. TIMen.

Sworn to before me this

27 day of September, 1945.

Emit H. WassERBERGER,

Comm. Deeds, New York City.

Term Exp. 4/18/46.

ll

Exhibit C.

SURROGATE’S COURT

New York County

In the Matter of the Application for Let-

ters of Administration on the Goods,

Chattels and Credits of

Henry ALTMAYER,

Deceased.

AFFIDAVIT

In the Matter of Proving the Last Wi

and Testament of

Henry ALTMAYER,

Deceased,

As a Will of Real and Personal Property.

Strate or New York

. 88. :

County or New York

James N. Vaucnan, being duly sworn, deposes and

says:

On September 11, 1945 a conference was had at the

Chambers of Surrogate Delehanty in the above matter.

In course of that conference we requested $2,000 from the

estate in behalf of my client who regardless of the out-

come of the appeal then contemplated was the main

owner of the funds formerly of her father. Mr. Timen

was willing unconditionally to consent that this money

should be paid my client. When he spoke with Mr. Was-

serberger about it in my presence Mr. Wasserberger im-

mediately raised the question of Mr. Timen’s authority

as his lawyer to give such consent. He endeavored to

ground his consent on an express understanding that he

(Mr. Wasserberger) should have commissions on the

12

Exhibit C.

money on the assumption that he would prevail in the

Court of Appeals. To this proposal I was unwilling to

assent on the ground stated by me that a contract affecting

commissions would be illegal. Mr. Wasserberger insisted

that at any rate the payments to Mrs. Rodney should be

without prejudice to his rights regarding commissions

on the sum. To this I agreed and Mr. Timen reported

the nature of the understanding to the Surrogate.

James N,. VauGHAN.

Sworn to before me this

lst day of March, 1946.

JessE L. NAPOLETANO,

Notary Public,

Bronx County.

Bronx Co. Clk’s No. 27, Reg. No. 69-N-7.

New York Co. Clk’s No. 251, Reg. No. 210-N-7.

Kings Co. Clk’s No. 21, Reg. No. 161-N-7.

Queens Co. Clk’s No. 2164, Reg. No. 112-N-7.

Commission Expires March 30, 1947.

IN THE

Supreme Court of the Rnited States

Octroser Term 1946 No. 372

ap.

¥

In the Matter of Proving the Last Will and Testament

of Henry ALTMAYER,

Deceased,

as a Will of Real and Personal Property.

Emm H. WaAsserBerGeER,

Petitioner,

v.

Beatrice ALTMAYER Ropney,

Respondent,

and

Donato T. MuLiane,

Special Guardian.

s

—

BRIEF OF RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

SUMMARY OF ARGUMENT.

Essentials decisive of present application for writ of

certiorari and requiring denial thereof.

13

14

Il.

No constitutional questions were passed on below in the

course of a “rehearing”.

Ill.

Detailed demonstration that there was absolute proce-

dural and substantive regularity in all courts below.

IV.

Answers to certain particulars in Mr. Wasserberger’s

present claims.

V.

Mr. Wasserberger by his own act set up the order of

the Appellate Division so that it might be reviewed on the

facts precisely as happened in the Court of Appeals.

Vi.

Mr. Wasserberger expressly, in terms, anticipated the

very action taken by the highest Court of Appeals in mak-

ing its final judgment.

VIL.

The “facts” of Mr. Wasserberger are not facts; and

even the actual evidentiary facts leading to the result

below are presently immaterial.

VIII.

Collateral facts warrant a direction by this Court that

the respondent should be allowed double costs.

IX.

Conclusion.

15

POINT I

Essentials decisive of present application for writ of

certiorari and requiring denial thereof.

Stated succinctly this is what happened. Mr. Wasser-

berger offered for probate in New York County a con-

formed copy of a will made by deceased in 1937. The

original will he claimed was fraudulently destroyed (fol.

24). Mrs. Rodney answering the claims of Wasserberger

contended (1) that probate should be denied because the

paper propounded was not an original will; (2) that

probate should be denied because the original had been

revoked; and (3) that probate should be denied because

of the non-occurrence of those facts and circumstances

which Wasserberger set forth in his petition as making

out his case of fraudulent destruction (fols. 70-72).

The issues were tried by a Surrogate. He denied pro-

bate stating that the presumption of destruction animo

revocandt attached to the 1937 instrument by reason of its

non-production since the original had been delivered to

the deceased (fol. 811). On all the facts the Surrogate

concluded that Mr. Wasserberger as proponent had

““* * * failed te carry the burden which was upon him to es-

tablish the indispensable fact of destruction in fraud

on deceased * * *’’ (fol. 813).

The Appellate Division of the Supreme Court reversed.

It made new findings of fact (fols. 845-6).

The Court of Appeals unanimously reversed the order

of the Appellate Division and affirmed the Surrogate’s

decree on the ground that the Surrogate’s findings were

in accordance with the weight of the evidence (Record p.

359).

At no time prior to the final determination by the

Court of Appeals was any constitutional or Federal

question presented or suggested by anybody.

16

The attempt to assert alleged rights arising under the

Fourteenth Amendment was made by Mr. Wasserberger

via a motion for reargument and to amend the remittitur.

The motion was denied with the following memorandum

(295 N. Y. 894):

‘*Motion by respondent Emil H. Wasserberger for re-

argument and to amend the remittitur denied, with

$10 costs and the necessary printing disbursements.

(See 295 N. Y. 693.)”’

On the basis of well established authority, the facts in

the case, as briefly outlined above, require denial of the

present petition for a writ of certiorari.

Fullerton v. Texas, 196 U. S. 192;

McMillen v. Ferrum Mining Co., 197 U. S. 348;

Corkran Oil & Development Co. v. Arnaudet, 199

U. S. 182;

McCorquodale v. State of Texas, 211 U. S. 432;

Forbes v. State Council of Virgmia, 216 U. S.

396 ;

Consolidated Turnpike Company v. The Norfolk,

etc. Ry. Co., 228 U. S. 326;

St. Louis & San Francisco R. R. Co. v. Shep-

herd, 240 U. S. 240;

American Surety Co. v. Baldwin, 287 U. 8S. 156;

Helis v. Ward, 308 U.S. 365.

POINT Il

No constitutional questions were passed on below in

the course of a “rehearing”.

The petitioner says that:

‘*An order on rehearing denied petitioner’s motion

for reargument and to amend the remittitur to recite

constitutional questions raised’’ (Petition p. 1).

17

On page 10 of petitioner’s brief he identifies the word

‘‘rehearing’’ as a synonym for the word ‘‘reargument’’.

There was no rehearing. There was no reargument.

There was simply a motion for reargument which the

Court of Appeals denied with costs. The effort of pe-

titioner (if he is making the effort) to suggest that he

was afforded a ‘‘rehearing’’ may find its explanation ir

the fact that had the Court of Appeals passed on the al-

leged constitutional questions when it received the motion

for reargument the United States Supreme Court might

have gained jurisdiction to review such action. This

point is adequately shown by the following language in

Fullerton v. Texas (supra) (p.193):

‘*We have repeatedly ruled that it is too late to

raise a Federal question by a petition for rehearing

in the Supreme Court of a State after that Court has

pronounced its final decision, although if the State

Court entertains the petition and disposes of the

Federal questions, that will be sufficient. Mallett v.

North Carolina, 181 U. S. 589. In that case it was

observed: ‘Had that Court declined to pass upon

the Federal question and dismissed the petition with-

out considering them, we certainly would not under-

take to revise their action’.’’

The Court of Appeals in the present case did not pass

on any Federal or constitutional questions. It simply

denied a motion for reargument.

POINT IIl

Detailed demonstration that there was absolute pro-

cedural and substantive regularity in all courts below.

Petitioner confuses the issue, the holding and the opin-

ions in the courts below. The sole issue was whether a

copy of a 1937 will of deceased was entitled to probate,

- mncenengraccs © ~ SET Re ROEM

18

The ultimate holding was that such copy was not entitled

to probate.

The opinion of the Surrogate who tried the case and

his findings of fact differed from the opinion of the in-

termediate appellate court and its findings of fact. The

Court of Appeals indicated briefly that it agreed (unani- -

mously) with’the views of the Surrogate.

What happened below is seriously distorted by the pe-

tition now made for a writ.

To set the matter straight some detail, with accurate

references to the record, is necessary.

(a) Proceedings in Surrogate’s Court:

The proceeding began with a petition by Mr. Wasser-

berger for probate of a copy of a will concededly executed

by deceased about seven years before his death. Mr.

Wasserberger alleged that the original will ‘‘has been

lost or destroyed, by accident or design, and that the said

Will was in existence at the time of deceased’s death, or

was fraudulently destroyed in his lifetime, * * *’’ (fol.

24).

In addition to denial of the material allegations in

Wasserberger’s petition Mrs. Rodney by her answer

pleaded (a) that the paper tendered for probate could

not be probated because ‘‘it is not an original will’’; and

(b) that the paper in question had been ‘‘duly revoked’’

in the lifetime of deceased. She did not by her pleadings

specify any theory of revocation (fol. 71).

The Surrogate not only formulated the nature of the

question he had to try but in fact Mr. Wasserberger’s

lawyer agreed to the correctness of the Surrogate’s

views on this point. The Surrogate early in the trial

said (fol. 125):

‘*All I am concerned with from this point on is

the question whether or not a fraudulent destruction

19

of the will was accomplished, either before or after

death.’’

Mr. Wasserberger did not then through his lawyer criti-

cize this notion. A moment later the Surrogate said

(fol. 130):

‘*The only thing I have in mind as the presently

triable issue is the one of fraudulent destruction.’’

Whereupon Mr. Wasserberger’s lawyer said:

**Correct, Judge * * *.’’

At the end of Mr. Wasserberger’s prima facie case in

favor of probate, the Surrogate was presented by Mrs.

Rodney with a motion to dismiss placed squarely on the

rule of law in New York (Matter of Staiger, 243 N. Y:

468), that an unproduced original will delivered to the

testator’s possession is presumed to have been duly re-

voked by him in the absence of affirmative proof to the

contrary (fols. 451-452). This motion led the Surro-

gate to say (fols. 453-454) :

“** * * the question is whether or not you (Mr.

Wasserberger—proponent) have shown anything that

will reverse the presumption that the will, not being

found, was destroyed by the testator with intention

to revoke.’’

The long statement then made by Mr. Wasserberger’s

lawyer did not in the slightest degree question the cor-

rectness of the Surrogate’s view as to the question he

had to decide in order to determine the issue before him,

to wit: whether the copy of the 1937 will should be pro-

bated.

Finally, the dependence of the contestant on the rule

of law in New York formulated by Matter of Staiger

20

(swpra) was at no point abandoned for we find Mrs. Rod-

ney at the very end of the trial renewing her motion

predicated on that rule of law (fols. 771-772).

The opinion of the Surrogate when delivered contains

substantially two holdings: First that ‘‘the presumption

of destruction animo revocandi attaches to the instrument

of 1937 by reason of its non-production since the original

was delivered to deceased’’ (fol. 811). Second that

‘‘The Court holds that the proponent has failed to

carry the burden which was upon him to establish

the indispensable fact of destruction in fraud on de-

ceased and accordingly denies the prayer of the pe-

tition for probate of the copy’’ (fol. 813).

The decree, which is the holding of the Surrogate’s

Court, recites that that Court had duly taken proof

‘‘among other things as to the existence of the original

of said will at the time of the testator’s death, and as

to the alleged fraudulent destruction of said will during

the lifetime of the testator’’ (fols. 15-16). The decree

then orders, adjudges and decrees that the copy of the

1937 will ‘‘be and the same hereby is rejected and de-

nied probate’’ (fol. 16). There never was any constitu-

tional question raised on the trial. Mr. Wasserberger

did not then claim he lacked ‘‘notice’’ of Mrs. Rodney’s

position. He did not claim he had been denied ‘‘fair

play’’. And he did not claim that the decree the Sur-

rogate made contained holdings inconsistent with the

pleadings.

(b) Appeal to Appellate Division:

If Mr. Wasserberger at any time had had some consti-

tutional rights within the meaning of subdivision (b) of

Section 344 of Title 28 of the United States Code (Judi-

cial Code Sec. 237, amended), rights which he might ‘‘spe-

21

cially set up’’ it was at this stage of the proceeding that

his opportunity specially to set them up existed. He might

then have noticed his appeal on such alleged grounds, But

he did not do so. The text of his notice of appeal indi-

cates that he ‘‘appeals from so much of said order and

decree as rejects and denies probate of the instrument

dated May Ist, 1937, propounded as a copy of the Last

Will and Testament of Henry Altmayer, deceased’’ (fol.

9).

The jurisdiction of the Appellate Division of the Su-

preme Court on an appeal from a decree of the Surro-

gate’s Court enables that Court to take in new facts

(Sec. 309 Surrogate’s Court Act). It did so in the proceed-

ing at the instance of Mr. Wasserberger. Such facts did

not alter the essential shape of the proof as it came

before the Surrogate.

The Appellate Division explicitly reversed the fact find-

ings of the Surrogate; and made its own new findings

of fact as appears from its resettled order (fols. 844-

847) which became the subject matter of Mrs. Rodney’s

appeal to the Court of Appeals (fols. 831-832). It is

noteworthy that the Appellate Division’s order is in sub-

stance an express holding that Mr. Wasserberger did

do what the Surrogate said he had not done. That Court

held that Mr. Wasserberger established by his proof

either that the original will existed when testator died

or that it had been fraudulently destroyed in deceased’s

lifetime (fol. 847). It expressly disapproved the fact

findings of the Surrogate and enumerated such disap-

proved findings (fol. 845).

It should here be borne in mind that it was Mr. Was-

serberger who prepared the order (fol. 838). It therefore

expresses his view of what the Appellate Division de-

cided. (See affidavit of James N. Vaughan prefixed to

this brief.)

22

(c) Appeal to Court of Appeals:

The appeal to the Court of Appeals was duly taken

by Mrs. Rodney from ‘‘each and every part’’ of the

Appellate Division’s resettled order (fol. 832). This

appeal was of right (Civil Practice Act, Sec. 588). Since

the Appellate Division on reversing the Surrogate’s

Court had found new facts, the jurisdiction of the Court

of Appeals extended to review of both the facts and law

(Art. 6, Sec. 7, Constitution of the State of New York;

Sec. 602, Civil Practice Act).

The Court of Appeals had for decision sharply con-

troverted questions of fact. The Surrogate’s fact find-

ings had been specifically rejected by the Appellate Di-

vision which made its own findings of fact. In this situa-

tion the highest court decided ‘‘that the findings of the

Surrogate are in accordance with the weight of the evi-

dence’’ and that ‘‘* * * it is considered that the said

order (appealed from) be reversed and decree of Sur-

rogate’s Court affirmed with costs in this Court and in the

Appellate Division’’ (Record p. 359).

Of course, there were many law questions argued to

the Court of Appeals not only by Mr. Wasserberger but

also by Mrs. Rodney. But the cause simmered down to

the fact question and that Court saw the facts and the

controlling law as the Surrogate saw them. So view-

ing the facts and law, the Court of Appeals could and

did briefly determine for reversal.

(d) Summary respecting the proceeding below:

Regularity features the proceedings below at every

stage thereof. The issue was one of probate or non-

probate of a copy of a will. It turned on the question

whether the original instrument, which was unproduced,

had been fraudulently destroyed. On this subject the

burden of proof rested with the proponent. The Surro-

23

gate held he failed to carry this burden. The Appellate

Division held he did. The Court of Appeals held he did

not.

The nature of the law question to be decided was

formulated by the Surrogate at the trial. It was never

denounced by Mr. Wasserberger as amounting to a de-

nial to him of due process or of equal protection of the

laws. Indeed Mr. Wasserberger assented at the trial

to its correctness. No constitutional claims were made

by Mr. Wasserberger on the later appeals. It was only

after he had been defeated in the highest court of the

State after a full hearing on briefs and argument that

he contrived his present theory of denial of due process

and of equal protection of the laws.

POINT IV

Answers to certain particulars in Mr. Wasserberger’s

present claims.

Assuming for discussion only that by way of a motion

for reargument of a finished case a constitutional ques-

tion might be injected into the cause though it was

never theretofore asserted, some consideration may be

given Mr. Wasserberger’s claims on their merits.

First he says he was denied due process of law. He

puts it this way (Petition p. 2):

‘‘The federal question involves a denial of due proc-

ess of law in giving judgment on a defense other

than that pleaded and proved. The relief granted

contestant was not within the grounds relied on by

her to obtain it.’’

Mr. Wasserberger here inverts what happened. There

was not so much a grant of relief to contestant as there

was a denial of relief to the petitioner. Mr. Wasser-

Ser tamara “ CET IER TEI DAL ENO

LAL PA OORT LLLP IIE ON AN

24

berger failed to sustain the burden of proving a fraudu-

lent destruction of the original will. He had that burden

at all times. The Surrogate said so repeatedly not only

with no dissent by Mr. Wasserberger during the trial

but with his express assent through his lawyer to the

correctness of this view (fol. 130).

If it may be said that Mrs. Rodney was ‘‘granted re-

lief’? it is nevertheless not true to say she received

it on grounds distinct from grounds on which she relied.

This can be demonstrated. In her answer asking denial

of probate to the copy of the will she alleged (fol. 70):

‘‘First: That the paper propounded for probate

herein, is invalid as a Last Will and Testament of

Henry Altmayer, deceased, and is illegal and void in

that it is not an original will.’’

The ultimate decision is plainly consistent with that alle-

gation. The propounded paper was not an original in-

strument. The original was delivered into custody of

deceased. It therefore had to be denied probate unless

its fraudulent destruction were proved by Mr. Wasser-

berger.

The answer of Mrs. Rodney also has this allegation

(fol. 71):

‘Second: That the said paper is not the Last

Will and Testament of decedent, in that it was dur-

ing his lifetime duly revoked by him’’ (fol. 71).

This allegation is consistent with any kind of revocation

including revocation presumed to have happened because

the original will was not produced and its fraudulent

destruction was not proved.

Mr. Wasserberger also says that ‘‘No notice was ever

given of any claim that after a search the will could

not be found’’ (Petition p. 3). This statement is untrue.

25

Such notice is contained in Mr. Wasserberger’s Exhibit

7 (fols. 796-800). It is also in the Petition of Mrs. Rod-

ney for letters of administration put before the Appel-

late Division by Mr. Wasserberger himself (fols. 848-

854). It is also the fact that the safe deposit box of de-

ceased was searched for a will in Mr. Wasserberger’s

presence and no will was found. (Incidentally Mr. Was-

serberger never conceded the paper was not in the box

although the representative of the State Tax Commission

said such was the fact.) (fols. 223-224). Moreover the

theory of the probate proceeding was that a copy was

offered in lieu of the original will because the original

could not be found (fol. 24).

Mr. Wasserberger explains the second alleged federal

question as follows (p. 4):

‘“‘The second federal question, involving equality

of treatment under the equal protection clause of the

14th amendment, arises out of the refusal of the

court below * * * to decide the question of law as to

revocation presented upon the appeal * * *’’.

What the Court of Appeals did was to reverse the order

of the Appellate Division and to approve the decree of

the Surrogate’s Court. If it failed to decide what Mr.

Wasserberger calls ‘‘the question of law as to revoca-

tion’? then so too did the Surrogate in the first instance.

But this constitutional ground of appeal if it ever existed

was not asserted at any time by Mr. Wasserberger until

his definitive defeat in the Court of Appeals.

Moreover the Court of Appeals was not presented with

a ‘‘question of law as to revocation’’. It was presented

with an appeal to it taken by Mrs. Rodney from ‘‘each

and every part’’ of the resettled order of the Appellate

Division—a very different thing indeed. It was an ap-

peal to the Court of Appeals to exercise its constitutional

power to review facts and to overturn the fact findings

26

of the Appellate Division. That Court’s problem was

to review the whole record in the light of the character

of the appeal.

Mr. Wasserberger speaking apparently of both alleged

constitutional questions and attempting to explain why

he never raised them until after losing in the Court of

Appeals says:

‘*The federal question arose from the unanticipated

disposition of the case at the close of proceedings

upon the appeal in the Court of Appeals.’’

Unanticipated by whom? The disposition made of the

case by the Court of Appeals was the hoped for outcome

which actuated Mrs. Rodney when she appealed for jus-

tice to that Court. (And see Point VI below where is

shown proof that Wasserberger in terms anticipated what

in fact happened in the Court of Appeals.)

POINT V

Mr. Wasserberger by his own act set up the order

of the Appellate Division so that it might be reviewed

on the facts precisely as happened in the Court of

Appeals.

It is odd to find Mr. Wasserberger claiming that the

Court of Appeals had no right to reverse on the facts.

It was he who insisted on a resettled order by the Ap-

pellate Division which contained express holdings of fact

by that Court thereby making it unnecessary for the

Court of Appeals to confine its review to questions of

law on the theory that the Appellate Division had af-

firmed the holding of fact by the Court of original juris-

diction (see § 602 Civil Practice Act). The original order

made by the Appellate Division (see Exhibit A to the

prefixed annexed affidavit of James N. Vaughan) had

merely reversed ‘‘upon questions of fact and law’’ with-

27

out stipulating what new facts it had found. In case of

an appeal from an order in that form the Court of

Appeals may, but will not necessarily, send the case

back to the Appellate Division that the latter Court

may amend its order to show its new fact findings (Hart

v. Blabey, 287 N. Y. 257). When the facts newly found

are, however, shown in the order of the Appellate Divi-

sion reversing the Court of original jurisdiction on the

facts then, under the State Constitution and Civil Prac-

tice Act, the Court of Appeals indubitably has the power

to review the facts found by the intermediate Court and

in a suitable case, such as the present case, to reverse

them. It has acted thus in other cases, of course. For

example see Aerated Products Co. v. Godfrey, 290 N. Y.

92, 95 and Pocket Books, Inc. v. Meyers, 292 N. Y. 58, 61.

Mrs. Rodney first appealed to the Court of Appeals,

from the order of the Appellate Division in its original

form. Strategically her position as appellant, looked

at prospectively, would have been better on an appeal

from an order in that form than frein an order whereby

the Appellate Division made express fact findings. In

the former alternative she would have had the benefit

of a presumption that the reversal by the Appellate Di-

vision had been made solely on questions of law. She,

therefore, opposed the making of the resettled order.

Nevertheless a resettled order was made and it became

the subject matter of the appeal to the Court of Appeals.

POINT VI

Mr. Wasserberger expressly, in terms, anticipated

the very action taken by the highest Court of Appeals

in making its final judgment.

Independently of everything heretofore stated in this

brief it chances that in this case the non-existence of

Mr. Wasserberger’s alleged right to a writ can be shown

out of his own mouth. Basically he now claims that Mrs.

28

Rodney was granted relief ‘‘not within the grounds relied

en by her to obtain it and which was not responsive to

the issue tendered and heard’’ (Brief p. 18). For this

reason he says he was denied ‘‘due process’’. And he

was denied ‘‘equal protection of the laws’’ he says be-

cause the Court of Appeals did not decide ‘‘the question

of law as to revocation presented upon the appeal’’ (Pe-

tition p. 4).

That both of his claims are unsound the objective facts

demonstrate.

But what is more he makes his present petition know-

ing they are unsound. He knows that Mrs. Rodney

did rely on the presumption of revocation of the origi-

nal Will in the absence of proof of fraudulent destruction

and that she relied on it in every Court below. That Mr.

Wasserberger had that knowledge appears from the affi-

davit made by his lawyer, Mr. Timen, under date 27 Sep-

tember 1945 and sworn to by Mr. Timen before Mr.

Wasserberger himself, the latter acting in his quality of

a Commissioner of Deeds in New York City.

The affidavit in question was made by Mr. Timen to

support a motion in the Appellate Division to resettle

the order of reversal made by that Court. The full text

of that affidavit is submitted as Exhibit B to the prefixed

affidavit of James N. Vaughan. Mr. Timen opens his affi-

davit by showing that reversal was put by the Appellate

Division on both facts and law; that the facts found by

the Surrogate materially differed from the facts found

by the Appellate Division; that under the last sentence of

§ 602 Civil Practice Act unless the Appellate Division by

its order stipulated the facts reversed and the new facts

found the Court of Appeals would presume the reversal

was made solely on the law; and that this would be preju-

dicial to Mr. Wasserberger. Then he says:

‘This is particularly significant in view of the fact

that the contestant (i. e., Mrs. Rodney who is the

29

respondent in regard to the present petition for a

writ of certiorari) urged a proposition of law in the

Court below (i. e., the Surrogate’s Court) and in this

Court (i. e., the Appellate Division of the Supreme

Court) that by reason of the nonproduction of the

will by proponent there arises a presumption that

the testator destroyed his will with intent to revoke.

‘*Resettlement is therefore asked so that if the

Court of Appeals deems fit to sustain the presump-

tion animo revocandi urged by the contestant in this

court and in the court below, it would need to do so

only after reviewing the facts and reversing the find-

ings of fact made in this court, instead of presuming

that the court agreed with the Surrogate that the

will could not be found at the time of the testator’s

death.’’

The action taken unanimously by the Court of Appeals

thus exactly answers to the specifications set forth in ad-

vance by Mr. Wasserberger himself (through his lawyer).

POINT VII

The “facts” of Mr. Wasserberger are not facts; and

even the actual evidentiary facts leading to the result

below are presently immaterial.

The ‘‘Facts’’ according to Mr. Wasserberger (Petition

pp. 7-10) are not the genuine evidentiary facts. They

are Mr. Wasserberger’s version of the evidentiary facts.

Mrs. Rodney’s testimony on material facts differed radi-

cally from that of her ex-lawyer Mr. Wasserberger. All

evidentiary faets for present purposes are immaterial.

For present purposes it is material to know only the

facts concerning the actions of the various Courts below

which shed light (1) on the question whether due process

ORS RAR Stare

30

or equal protection of law were accorded Mr. Wasser-

berger and (2) on the preliminary question whether he

has any standing to raise constitutional issues after final

judgment by the highest Court of New York State.

POINT VIII

Collateral facts warrant a direction by this Court

that the respondent should be allowed double costs.

There are some collateral facts which should be shown

as a guide to the Court in conjunction with respondent’s

application to this Court to award her double costs as

provided by Subdivision (c) of § 344, Title 28, United

States Code (Judicial Code, § 237, amended) read in con-

junction with §878 thereof. Such double costs should be

granted apparently where there appears ‘‘* * * to be no

reasonable ground for granting a petition for cer-

Geren; * * ©”

Mr. Wasserberger is the former lawyer of Mrs. Rod-

ney (fols. 118; 206; 150; 209; 211; 317; Proponent’s Ex-

hibit 3). His testimony of her statements to him (denied

by her in all material respects) is testimony of state-

ments she is alleged to have made in his office and while

standing in the lawyer-client relationship. All such al-

leged statements were drawn out by Mr. Wasserberger

according to his own version of what Mrs. Rodney said

to him (fols. 166-168; 171-172; 176-177; 188). Nothing

was volunteered by her,—according to Mr. Wasserberger

himself. (On this aspect of the matter consider Section

353 Civil Practice Act.)

Mr. Wasserberger in this litigation apart from his own

personal interests in getting commissions as a fiduciary

and fees as a lawyer represented interests aggregating

$4,000; and even that interest in $4,000 was pro forma be-

cause the two general legatees under the propounded pa-

per distinct from Mrs. Rodney and her daughter Nanette

31

had notice of the probate contest (fol. 92) but never

appeared in the proceeding. In substance only Mrs. Rod-

ney and her daughter would have taken really important

benefits under the alleged Will. Mrs. Rodney contested

the Will by her own counsel. The infant daughter was

represented separately by her Special Guardian. After

the decision by the Surrogate’s Court it was Mr. Wasser-

berger theoretically representing interests aggregating

$4,000 (apart from his personal financial hopes) who

alone appealed to the Appellate Division. The Special

Guardian did not appeal.

That Mr. Wasserberger at all times was concerned

deeply with getting the maximum amount of money he

could from this estate was revealed by a trifling incident.

During the interval between reversal by the Appellate

Division and reversal of that Court by the Court of Ap-

peals, Mrs. Rodney wanted the small sum of $2,000 on

account of her share in the estate. Mr. Wasserberger

tried to condition his consent to payment of the sum on

an agreement that he should have his executorial com-

missions computed on it. (See Exhibit C attached to the

prefixed affidavit of James N. Vaughan.)

When the Court of Appeals reversed the Appellate

Division it became appropriate for the Surrogate’s Court

to make its order and decree on remittitur. In connection

therewith Mr. Wasserberger applied for an allowance for

legal services in the Appellate Division and in the Court -

of Appeals. What he wanted was $25,000. He was al-

lowed $2,500. The Special Guardian was allowed $750.

Mr. Wasserberger was also awarded costs and disburse-

ments of $465.24 and has accepted payment of that

amount. Dissatisfied with his counsel fee of $2,500 he

appealed to the Appellate Division. His appeal to that

Court was taken solely from so much thereof as grants

him $2,500 ‘‘for his expenses for counsel on both such

appeals.’’ This appeal had been boticed for argument on

September 27, 1946.

SAEED ERE TEE TP Cre ET

32

It is submitted that the foregoing collateral facts taken

in conjunction with the other matters hereinabove set

forth justify the conclusion that in denying the present

petition for a writ of certiorari double costs should be

awarded the respondent.

POINT IX

Conclusion.

The petition for the writ of certiorari should be denied

(a) Because constitutional questions were not injected

into the cause until after final judgment by the highest

Court of New York State and that Court at no time

passed on any Federal or constitutional question:

(b) Because the action of the highest Court of New

York State was strictly in accordance with its power as

defined by the Constitution of New York State;

(c) Because the actual decision of the highest Court

of New York State not only was within its jurisdiction

and power but was explicitly anticipated as a possibility

by Mr. Wasserberger himself;

And in denying the present petition this Court should

exercise its power to award double costs to respondent

on the ground that there is no reasonable basis for grant-

ing the writ and the petitioner had knowledge of that

fact before he made this application.

Respectfully submitted,

VauGHan anv Lyons,

Attorneys for Respondent.

James N. VAUGHAN,

of Counsel.

33

Appendix

Title 28, United States Code, § 344 (b) (Judicial Code

§ 237 (b):

‘*(b) It shall be competent for the Supreme Court,

by certiorari, to require that there be certified to it

for review and determination, with the same power

and authority and with like effect as if brought up

by writ of error, any cause wherein a final judgment

or decree has been rendered or passed by the highest

court of a State in which a decision could be had

where is drawn in question the validity of a treaty

or statute of the United States; or where is drawn in

question the validity of a statute of any State on the

ground of its being repugnant to the Constitution,

treaties, or laws of the United States; or where any

title, right, privilege, or immunity is specially set up

or claimed by either party under the Constitution,

or any treaty or statute of, or commission held or

authority exercised under, the United States; and the

power to review under this paragraph may be exer-

cised as well where the Federal claim is sustained

as where it is denied. Nothing in this paragraph

shall be construed to limit or detract from the right

to a review on a writ of error in a case where such

a right is conferred by the preceding paragraph;

nor shall the fact that a review on a writ of error

might be obtained under the preceding paragraph be

an obstacle to granting a review on certiorari under

this paragraph.”’

ane me

§ 344 (e):

‘‘(¢) If a writ of error be improvidently sought

and allowed under this section in a case where the

proper mode of invoking a review is by a petition

for certiorari, this alone shall not be a ground for

34

Appendix.

dismissal; but the papers whereon the writ of error

-was allowed shall be regarded and acted on as a

petition for certiorari and as if duly presented to the

Supreme Court at the time they were presented to

the court or judge by whom the writ of error was

allowed: Provided, That where in such a case there

appears to be no reasonable ground for granting a

petition for certiorari it shall be competent for the

Supreme Court to adjudge to the respondent reason-

able damages for his delay, and single or double costs,

as provided in section 878 of this title.’’

§ 878:

‘‘Damages and costs on affirmance. Where, upon

a writ of error, judgment is affirmed in the Supreme

Court or a circuit court of appeals, the court shall

adjudge to the respondents in error just damages

for his delay, and single or double costs, at its dis-

cretion.’’

Surrogate’s Court Act, $309:

‘*Power of Appellate Court: Further Testimony.

Where an appeal is taken upon the facts, the Appel-

late Court has the same power to decide the ques-

tions of fact, which the Surrogate had; and it may,

in its discretion, receive further testimony or docu-

mentary evidence and appoint a referee.”’

New York Civil Practice Act, § 353; $588; § 602.

**§ 353. Attorneys and their employees not to dis-

close communications. An attorney or counsellor at

law shall not be allowed to disclose a communication,

made by his client to him, or his advice given thereon,

in the course of his professional employment, nor

35

Appendia.

shall any clerk, stenographer or other person em-

ployed by such attorney or counselor be allowed to

disclose any such communication or advice given

thereon.”’

‘6§588. Appeal as of right. Appeal to the court

of appeals as of right lies only

1. from a judgment or order of the appellate divi-

sion, provided that the judgment finally determine

an action, or the order finally determine a special

proceeding, which action or proceeding was originally

commenced in the supreme court, a county court, a

surrogate’s court, the court of claims, or an admin-

istrative agency; and provided further that,

(c) the appellate division direct a reversal or modi-

fication of the judgment or order appealed from;

‘6§602. Order of appellate division to specify

grounds upon reversal or modification ; presumption

otherwise made. Whenever the appellate division

reverses or modifies or sets aside a determination

and thereupon renders a final or interlocutory judg-

ment or order, except where it reinstates a verdict,

its order shall state whether its determination is

upon the law, or upon the facts, or upon the law

and the facts.

1. If the determination is stated to be upon the law

alone, the order shall also state whether or not the

findings of fact below have been affirmed; and

9. If the determination is stated to be upon the

facts, or upon the law and the facts, the order shall

also

(a) specify the findings of fact which are reversed

or modified, and A

36

Appendix.

(b) set forth any new findings of fact made by the

appellate division with such particularity as was em-

ployed for the statement of the findings of fact in

the court of original instance; except that

(c) the order need not specify the findings of fact

which are reversed or modified nor set forth any

new findings of fact if the appeal is either from a

determination duly rendered by the court without any

statement of the findings of fact or from a judgment

entered upon a general verdict without special find-

ings.

If the order of the appellate division does not

comply with the requirements of this section, the

court of appeals shall presume that the questions of

fact were not considered by the appellate division.’’

New York State Constitution, Article 6, §7:

‘“‘§$7. (Jurisdiction of court of appeals.) The

jurisdiction of the court of appeals shall be limited to

the review of questions of law except where the judg-

ment is of death, or where the appellate division,

on reversing or modifying a final or interlocutory

judgment in an action or a final or interlocutory

order in a special proceeding, finds new facts and a

final judgment or a final order pursuant thereto is

entered; * * *”’

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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Opposition Brief — Wasserberger v. Rodney · 329 U.S. 731 | Frix