| Page 201 407 A.2d 201
William FEINBERG and Morris
Feinberg, successor
Administrator to Peter Feinberg,
Administrators
C.T.A. of the Estate of Harry Feinberg,
Deceased, Plaintiffs Below, Appellants,
v.
Keila MAKHSON, Jean Dahl, Irving Newman,
Leonard Newman,
Rose Cohen, Samuel Schwartz, Marvin Robert
Blumberg, Allen
Irving Blumberg, Sonia J. F. Klimoff, Henry
Arthur Feinberg,
Ida Slutsky, Harriet Ruth F. Pernick, Judith
A. F. Wilk,
Susan Feinberg Johnson, Isidor Rubin and
Peter Feinberg,
Defendants Below, Appellees.
Ida SLUTSKY and Yetta Rubin, in behalf of
her Deceased
husband, defendant Isidor Rubin, Appellants,
v.
Keila MAKHSON, Appellee. Nos. 234, 1977, 255, 1977.
Supreme Court of Delaware.
Submitted May 25, 1979.
Decided Sept. 6, 1979.
Page 202
Upon appeal from the Court of
Chancery. Affirmed.
Richard David Levin, of Levin,
Spiller & Twer, Wilmington, for
plaintiffs-appellants.
William D. Bailey, Jr. and David
C. McBride, Wilmington, for
defendant-appellee, Keila Makhson.
Robert S. Weiner, of Woloshin &
Tenenbaum, Wilmington, for
defendants-appellants.
Before McNEILLY, QUILLEN and
HORSEY, Justices.
PER CURIAM:
The personal representatives of a
decedent's estate appeal a summary judgment
determination and order that one of the
parties-defendant, a citizen and resident of
the U.S.S.R. who claims to be decedent's
blood sister and nearest relative, Keila
Makhson, is in fact such person and is
entitled to the estate of decedent, Harry
Feinberg who died testate, a resident of New
Castle County, Delaware, in 1943, leaving
all of his estate to his "nearest
relatives."
In 1960
1
and about two years after the administrators
of the estate had distributed substantially
all of the assets to persons living in the
United States who had been determined to be
decedent's next of kin, claim was asserted
by a person claiming to be Keila Makhson, a
Russian citizen, that she was decedent's
sister and therefore entitled to decedent's
estate. The administrators then petitioned
the Court of Chancery for instructions as to
who was entitled to decedent's estate. In
1977
2 the Court
of Chancery granted summary judgment in
favor of Makhson; ordered the personal
representatives to render an accounting and
to pay over to Makhson the undistributed
balance of the estate less reserves for
debts and taxes; and the Court reserved
jurisdiction to determine the liability of
the personal representatives and the estate
distributees to Keila Makhson for the
remaining assets of the estate that had been
previously distributed.
On appeal, the personal
representatives argue that summary judgment
was improvidently granted because of
unresolved material issues of fact relating
to the identity of Makhson. Their primary
contention is that the court below erred in
granting summary judgment in that it relied
upon hearsay evidence, documents
reconstructed after World War II, and
Russian court decrees resulting from Ex
parte hearings.
3
The question before us is not
Page 203 whether Makhson has conclusively established
that she is the sister of decedent but
rather, whether the Court of Chancery, under
the evidence before it and the
circumstances, properly granted summary
judgment. Without adopting the reasoning of
the Vice Chancellor, we hold that on the
particular facts of this case, summary
judgment was properly granted.
It is settled law in Delaware
that where a moving party's affidavits in
support of a Rule 56 motion negate the
opposing party's pleadings, the opposing
party must submit countervailing evidence or
affidavits or judgment may be granted.
Perfect Photo Equities, Inc. v. America
Corporation, 42 Del.Ch. 372, 212 A.2d 808
(1965). Makhson, through counsel,
presented the Court with her affidavit
swearing to the fact that she is the sister
of decedent as well as numerous certificates
issued by the Bureau of Vital Statistics of
the U.S.S.R. relating to her pedigree.
Between the time that Makhson's
claim was formally brought to the attention
of the personal representatives of the
estate and the lower court's summary
judgment determination, a period of some 15
years had elapsed. Over this period of time
the personal representatives have repeatedly
expressed their doubt as to the validity of
claimant's contention that she is Keila
Makhson and decedent's blood sister. But the
representatives now, if not previously,
concede that decedent Feinberg had a sister
at one time living in Russia whose name was
Keila Makhson. The personal representatives
have, over the above lengthy period of time,
undertaken no discovery by way of
deposition, written interrogatories, or
deposition upon written interrogatories of
claimant to resolve the question. The
personal representatives have failed to
unearth any evidence to refute Makhson's
claim; and their affidavit opposing summary
judgment does not go beyond stating that
they have endeavored to ascertain whether
any next of kin of decedent might be living
in the U.S.S.R. but that all efforts have
proved fruitless. Their affidavit in
opposition to summary judgment states no
more than that they have no information to
support or refute Makhson's claim that she
is decedent's sister. The affidavit they
rely on was made in June 1964.
Clearly, the personal
representatives' affidavit fails to overcome
the admonition of Chancery Rule 56(e) that a
party opposing summary judgment "may not
rest upon the mere allegations or denials of
his pleading, but his response, by
affidavits or as otherwise provided in this
Rule, must set forth specific facts showing
that there is a genuine issue for trial."
The affidavit of the personal
representatives does little more than affirm
their doubt as to the proof of Makhson's
assertion that she is the sister of
decedent.
It is clear beyond question that
more than a reasonable time, indeed an
inordinate amount of time, has been afforded
the estate's representatives within which to
demonstrate the existence of a genuine issue
of fact that would bar summary judgment.
None having been shown, we hold that
appellee has established, by competent and
uncontradicted evidence, that she is Keila
Makhson, sister of decedent, and hence, the
Vice Chancellor was justified in granting
summary judgment in her favor.
In view of the Court's
reservation of jurisdiction for the purpose
of determining liability, if any, of the
personal representatives and the estate
distributees to Makhson for sums already
distributed to them, the holding hereof is
not to be construed as determinative in any
way of the remaining unresolved issues in
this case.
The judgment of the Court of
Chancery is affirmed.
1 The record is unclear as to the precise
year. However, the date is immaterial for
the purpose of this decision.
2 The regrettably long delay was brought
about in part by difficulties in
communication, retirement from the bench of
the Vice Chancellor before whom the case was
originally heard, and changes in the
personal representation of the estate and
change of counsel.
3 The representatives argue that Russian
reconstructed vital statistics records were
not recognizable under a 1964 Consular
Convention with Russia because not drawn and
executed in conformity with the controlling
law, Delaware, 16 Del.C. § 3131 and 10
Del.C. § 4309. We reject the contention. |