Opposition Brief — Wasserberger v. Rodney
Supreme Court brief1946
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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.