Miller's Estate, In re
| Decision Date | 01 May 1951 |
| Citation | 104 Cal.App.2d 1,230 P.2d 667 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re MILLER'S ESTATE. PEOPLE v. McGRATH, U. S. Atty. Gen. Civ. 14505. |
Edmund G. Brown, Atty. Gen., W. R. Augustine, B. Abbott Goldberg, Deputy Attys. Gen., for appellant.
Harold I. Baynton, Asst. Atty. Gen., of United States, Director, Office of Alien Property, Frank J. Hennessy, U. S. Atty., Northern District of California, San Francisco, Valentine C. Hammack, Lillian C. Scott, Sp. Assts. to Atty. Gen., George B. Searls, Joseph Laufer, Attorneys, Department of Justice, Washington, D. C., for respondent.
Appeal by the State of California, petitioner in intervention, from probate decree in favor of the Attorney General of the United States, objector, determining rights under section 259 of the Probate Code.
1. Does the evidence show that on April 22, 1942, reciprocal rights of inheritance existed as to personal property between the United States and Germany?
2. Does the right to receive payment provided in section 259 of the Probate Code mean immediate payment?
3. Is In re Estate of Schluttig, 36 Cal.2d 416, 224 P.2d 695, res judicata as to this case?
4. May the effect and application of foreign law be proved by circumstantial evidence?
Alice A. Miller, an American citizen, died testate in Oakland, California, on April 22, 1942. She left the entire residue of the estate, consisting of both real and personal property, in equal shares to Wilhelmina Gramann and Dorette Brunotte, first cousins and her only relatives. Wilhelmina Gramann, unmarried and a citizen and resident of Germany, had predeceased the testatrix without leaving issue. Thus, Dorette Brunotte, likewise a citizen and national of Germany, was testatrix' sole surviving heir and next of kin. On September 19, 1944, she, too, died. Acting under the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq., the Alien Property Custodian vested the interests of both residuary legatees. (Vesting Order #2803.)
The executors filed a petition for partial distribution, listing certain real and personal property as available for immediate distribution and stating that the State of California and the Custodian were asserting conflicting claims to the legacies. The State filed a petition in intervention alleging that on April 22, 1942, American citizens had no right to take property or to receive payment from German estates, and hence, the two German legatees were rendered ineligible by section 259 of the Probate Code to take under the will, and, there being no other heirs or next of kin, the estate escheated to the State of California as provided in section 259.2. The Alien Property Custodian answered the petition, as did the executor, denying the asserted absence of reciprocal inheritance rights for American citizens in Germany, and in reliance on his vesting order asked that the residuary estate be distributed to him.
Following the decision in Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (), the Custodian's claim to the realty was no longer questioned. The question of whether reciprocal inheritance rights existed between the two countries is limited solely to the personal property.
The probate court found that on April 22, 1942, under the laws of Germany, American citizens did enjoy recriprocal rights with German citizens as to personal property and money inherited from German estates. It found that the residuary legacy of Wilhelmina Gramann had lapsed and that the Custodian, as successor in interest to Dorette Brunotte, only surviving heir, was entitled to the distribution of the entire estate. A final decree was entered distributing the estate to the Custodian. (The Attorney General of the United States has succeeded to the rights and duties of the Custodian and has been substituted in his place.)
At the time of the death of the decedent, section 259 of the Probate Code provided: 'The rights of aliens not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign countries.'
Section 259.1 provided that the burden of establishing that reciprocal rights exist is on the nonresident alien (here the United States Attorney General). As said in Re Estate of Schluttig, supra, 36 Cal.2d 416, at page 424, 224 P.2d at page 700: Therefore, the matter for us to determine is whether there is substantial evidence to support the court's finding of the existence of reciprocity on April 22, 1942.
The evidence consisted of German laws, documentary evidence, and the conflicting testimony of certain experts on German laws. The issue before the superior court required a consideration not only of the existence of the foreign statutes but a finding as to their effect based upon the translation of them and their practical application by the German courts. The parties did not agree as to the correct translation of the statutes and each stressed uncertainties and ambiguities which required explanation. Moreover, it was shown that the right to inherit in the foreign countries depended upon certain policies of the Nazi regime. Upon all of these subjects both parties presented considerable testimony by experts. Respondent introduced the texts of the German laws relating to inheritance. 1 Without exception, these laws refer to persons without distinction as to race or nationality. Neither Americans nor aliens generally are mentioned in the German Civil Code which was still in effect during the entire Nazi regime. Section 48 of the German Law Concerning Last Wills and Testaments of 1938 provided:
Dr. von Lewinski, a German national, testified for respondent. He qualified as an expert on German law. He studied law in this country at Harvard and Columbia Law Schools and in 1907 was appointed a judge of the County Court at Berlin where he served for a year and a half. For the next 10 years he was an assistant in both the Prussian Department of Justice and the Federal Department of Justice and also a Justice of the Court of Appeals of Berlin. From 1922 to 1932 he served in the United States as German Agent for the Mixed Claims Commission, Consular of the German Embassy and Consul General in New York. Upon his return to Germany in 1932 he practiced law in Berlin until approximately the time of trial herein, specializing in probate law. He testified that he had handled four to five hundred cases in which Americans had inherited estates in Germany and vice versa; that before the war the right to inherit was recognized and the assets transferred; that the German inheritance laws are contained in the German Civil Code, Fifth Book, and that article 154 of the Weimar Constitution enacted in 1919 recognized and guaranteed the right to inherit in accord with the Civil Code. Translations of these were in evidence. Also, at the time here in question, there were no other laws in Germany having any bearing on the right of inheritance.
With respect to the pertinent sections of the Civil Code, and the right to inherit and succeed, this witness testified that no distinction was made between nationals of Germany and foreigners, including American citizens; that under the German laws of inheritance any foreigner may succeed to an estate in Germany on the same terms as a national of that country. He further testified that this right of inheritance remained intact throughout the Nazi regime and that no laws were enacted which in any way abrogated it. At the outbreak of war actual transfers of property inherited by American citizens were discontinued. Thereafter their property was placed in the hands of administrators who were subject to the control of the courts. The title of the enemy alien was not disturbed, and Germany never passed legislation confiscating enemy property. Dr. von Lewinski, himself, was appointed by the court in a number of instances as custodian of the interests of American heirs.
The witness further declared that the Law of Wills of 1938 was not construed as applying to or affecting wartime gifts to belligerents. He had never heard of a single decision in which a legacy to an American had been held void under the statute. On the contrary, in each of the cases he handled...
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