Arbulich's Estate, In re

• Citation: 41 Cal.2d 86,257 P.2d 433
• Parties: In re ARBULICH'S ESTATE. ARBULICH v. ARBULICH. S. F. 18194.
• Decision Date: 26 May 1953
• Court: United States State Supreme Court (California)

Page 433

257 P.2d 433

41 Cal.2d 86

In re ARBULICH'S ESTATE ARBULICH v. ARBULICH.

S. F. 18194.

Supreme Court of California, in Bank.

May 26, 1953.

Rehearing Denied June 18, 1953.

Haas & Schwabe, Portland, Or., Hubbard & Hubbard, San Francisco, Peter A. Schwabe, Portland, Or., and Emmet B. Hayes, San Francisco, for appellant.

Frank J. O'Brien, San Francisco, for respondent.

SCHAUER, Justice.

Following hearings on petitions to determine heirship in this estate the probate court found that on March 21, 1947, the date of death of the decedent (see Estate of Giordano (1948), 85 Cal.App.2d 588, 594, 193 P.2d 771), the reciprocal inheritance rights prescribed by section 259 of the Probate Code did not exist between residents and citizens of this nation and those of Yugoslavia as to either real or personal property. Judgment was thereupon entered to the effect that decedent's surviving brother Thomas (respondent herein), residing in and a citizen of the United States, is entitled to distribution of decedent's entire estate, to the exclusion of a surviving brother, John, who resides in and is a national of Yugoslavia. The two brothers are decedent's sole heirs at law. John appeals, contending that the evidence is not sufficient to support the finding of nonreciprocity. The question before us is not whether we, if we were viewing the evidence intitially, should find that the greater weight seemed to favor appellant or the respondent but is, rather, whether we can hold that as a matter of law the finding of the probate court is without substantial evidentiary support. Every reasonable inference must be drawn in favor of the respondent. (Holmberg v. Marsden (1952), 39 Cal.2d 592, 596, 248 P.2d 417). So viewing the evidence we have concluded that appellant's contention cannot be sustained and that the judgment should be affirmed.

Charles J. Arbulich, the decedent, was a naturalized citizen of the United States who died in San Francisco. By his will he left his entire estate, consisting of both real and personal property, to his father if the father survived the testator, otherwise to the testator's brother, appellant John Arbulich, Jr., of Yugoslavia. The father predeceased Charles. Both respondent Thomas and appellant John (by the Consul General of Yugoslavia, who purports to be John's attorney-in-fact) filed petitions to determine heirship, and this proceeding followed.

The question on the merits, as already indicated, is whether the evidence supports the court's finding that the reciprocal rights required by the provisions of section 259 of the Probate Code did not exist on March 21, 1947. ¹ Treaties, statutes, and other evidence of the foreign domestic law may be considered. (Estate of Knutzen (1948), 31 Cal.2d 573, 579, 191 P.2d 747; Estate of Bevilacqua (1948), 31 Cal.2d 580, 582, 191 P.2d 752. Where treaties or statute law alone are before the court the construction thereof is a matter of law, but the question of how the foreign country has construed and applied such treaties or statutes is a question of fact. A finding by the trial court on the issue of reciprocity is to be treated like a finding on any other issue of fact and if there is evidence to support it such finding will not be disturbed on appeal. (See Estate of Schluttig (1950), 36 Cal.2d 416, 423-424, 224 P.2d 695; Estate of Reihs (1951), 102 Cal.App.2d 260, 268, 227 P.2d 564; Estate of Miller (1951), 104 Cal.App.2d 1, 4, 230 P.2d 667.)

The following documentary evidence was included in the before the court in this proceeding:

1. A copy of the constitution of Yugoslavia, which apparently became effective on January 31, 1946. It is declared therein, among other things, that (Article 18), 'Private property and private initiative in economy are guaranteed. The inheritance of private property is guaranteed. The right of inheritance is regulated by law. No person is permitted to use the right of private property to the detriment of the people's community. * * * Private property may be limited or expropriated if the common interest requires it, but only in accordance with the law. It will be determined by law in which cases and to what extent the owner shall be compensated. Under the same conditions individual branches of national economy or single enterprises may be nationalized by law if the common interest requires it. (Article 19) The land belongs to those who cultivate it. The law determines whether and how much land may be owned by an institution or a person who is not a cultivator. There can be no large land-holdings in private hands on any basis whatsoever. The maximum size of private land-holdings will be determined by law.'

2. A Yugoslav decree dated July 16, 1946, pertaining to the acquisition of real property by foreigners. It provides, in part, that 'Foreign citizens may acquire rights to ownership of real estate in * * * Yugoslavia either by legal business among the living or by legacy (in case of death) only by previous approval of the competent government agency. * * * (Such) limitations * * * shall not refer to acquisitions of real estate by legal inheritance * * * Permits * * * shall be issued by the Chairman of the Economic Council of (Yugoslavia) * * *' with an appeal 'to the Government' allowed if a permit is refused. The Chairman of the Economic Council is 'authorized to issue instructions and explanations in connection with the application of this decree.' The decree provides no guide or standard to control the Chairman or 'the Government' in determining when and whether permits shall issue.

3. A Yugoslav decree dated March 20, 1948, entitled 'Control of Real Estate Transactions,' which provides in Article 5 thereof that 'Foreign citizens may not acquire right of property on real estate (in) * * * Yugoslavia, except on the basis of legal inheritance,' and in Article 8 that 'The provisions hereof are not valid for acquiring real estate by Yugoslav citizens on the basis of legal inheritance or on the basis of inheritance through testaments.' Article 10 invalidated the decree of July 16, 1946 (item No. 2 hereinabove).

4. A copy of a letter ² dated January 19, 1949, from A. G. Heltberg, American Consul in Belgrade, Yugoslavia, addressed to the Controller of the State of California, in which it is stated, among other things, that the provision of the Yugoslav decree of March 20, 1948, that 'Foreign citizens may not acquire right of property or real estate (in) * * * Yugoslavia except on the basis of legal inheritance,' has been 'informally interpreted' by the claims office of the Yugoslav Ministry of Foreign Affairs 'to mean that foreign citizens may inherit property if they, under Yugoslav law, are considered to be the natural heirs of the deceased. If property is willed to some other person than the natural heir that person may not succeed to the property in question.'

It is apparent that the evidence summarized hereinabove is sufficient to support a finding that on the date of decedent's death in 1947 reciprocal rights did not exist with respect to real property. In the decree of July 16, 1946 (which remained in effect until invalidated by the decree of March 20, 1948), it is declared that foreign citizens may acquire real property 'by legacy (in case of death) only by previous approval of the competent government agency,' and that such limitations shall not refer to acquisitions by 'legal inheritance.' As already noted herein, no standards are provided to guide either the government agency or a testator in determining in what situations, if any, such acquisition by legacy would be approved, and it is inferable that the granting, the withholding, or the conditions of granting, approval may vary from case to case according to the discretion of the governmental agency as exercised in an unbounded field and unguided by standards of equality of application. The situations thus appears to be comparable to that before the court in Estate of Schluttig (1950), supra, 36 Cal.2d 416, 425, 224 P.2d 695 in which it was held that when 'the taking of estates by testamentary disposition or succession is a matter of sufferance determinable in accordance with directions of the Nazi officials and their concepts of national sentiment, there is no 'reciprocal right' as that term is used in the Probate Code.'

Furthermore, it is to be noted that section 259 of the Probate Code, which is here involved, limits the right of the nonresident alien 'to take real property in this State by succession or testamentary disposition,' to those instances where there is 'a reciprocal right upon the part of citizens of the United States to take real property upon the same terms and conditions as residents and citizens' (italics added) of the country of the alien's residence. That the terms and conditions on which foreigners may acquire real property in Yugoslavia by testament differ from those on which it may be so acquired by Yugoslav citizens is a reasonable inference to be drawn from the decree of July 16, 1946. Although the provisions of the decree of March 20, 1948, and of the interpretation thereof by Yugoslav authorities which is set forth in the consular letter of January 19, 1949, do not directly establish Yugoslav law as of the date of the testator's death herein (March, 1947), they do tend to confirm that under the decree of July 16, 1946, a differentiation was established between the right of foreigners who are natural heirs of the deceased to succeed to real estate 'by legal inheritance' and any rights claimed by other foreigners to take real estate 'by legacy (in case of death).'

Appellant contends, nevertheless, that the provisions of Article II ³ of a treaty entered into in 1881 between the United States and the Kingdom of Serbia, 22 Stat. 964 (of which the present Republic of Yogoslavia is the successor government) and certified by the Secretary of State of the United States as remaining in full force and effect between this...