Caravas' Estate, In re

• Decision Date: 02 December 1952
• Citation: 250 P.2d 593,40 Cal.2d 33
• Parties: In re CARAVAS' ESTATE. BRANDENBURGER v. STATE. Sac. 6166.
• Court: California Supreme Court

Page 593

250 P.2d 593

40 Cal.2d 33

In re CARAVAS' ESTATE.

BRANDENBURGER v. STATE.

Sac. 6166.

Supreme Court of California, in Bank.

Dec. 2, 1952.

Brandenburger & White and William A. White, Sacramento, for appellant.

Harold I. Baynton, Asst. Atty. Gen., Frank J., hennessy, U. S. Atty., San Francisco, George B. Searls and Joseph Laufer, Attorneys, Department of Justice, Washington, D. C. and Myron D. Alexander, Sp. Asst. to Atty. Gen., amici curiae on behalf of appellant.

Edmund G. Brown, Atty. Gen., and William J. Power, Deputy Atty. Gen., for respondent. J. Power, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Gerasimos Caravas died intestate in San Francisco on September 30, 1941, and his estate was probated in the Superior Court of the City and County of San Francisco. No heirs appeared to claim the estate and on September 15, 1942, the court entered its decree ordering distribution of the estate to the state treasurer pursuant to section 1027 of the Probate Code. In fact, however, Gerasimos was survived by his mother, Foteini Caravas, a resident and citizen of Greece and his sole heir under section 225 of the Probate Code. Foteini died in Greece in 1944. On August 25, 1947, petitioner, administrator of Foteini's estate, filed a petition in the Superior Court of Sacramento County praying that the state treasurer be ordered to pay to petitioner the funds of the estate, amounting to $1,936.18. In explanation of the delay in filing the claim petitioner alleged, and the trial court found, that Greece was occupied by German military forces from April 7, 1941, to November 30, 1944, and that during this period it was impossible to file a claim for the funds held by the state treasurer. The trial court also found that the reciprocity necessary under section 259 of the Probate Code existed. The court, however, entered judgment denying the claim, on the ground that it was barred by section 1026 of the Probate Code, providing: 'A nonresident alien who becomes entitled to property by succession must appear and demand the property within five years from the time of succession; otherwise, his rights are barred and the property shall be disposed of as escheated property.' Petitioner appeals from the judgment, contending that his claim was timely made on the ground that the period of German occupation of Greece should not have been included in the computation of the five year period prescribed by section 1026.

When a nonresident alien succeeds to property, title vests in him at the death of the decedent, In re Estate of Romaris, 191 Cal. 740, 744, 218 P. 421, subject to the control of the probate court and to the possession of the personal representative for purposes of administration. Probate Code, § 300. If the nonresident alien should 'appear and demand' the property within five years of his succession thereto, his right to the property is absolute; if he fails to meet that requirement, his right to the property is barred and the property is disposed of as escheated property. Lyons v. State of California, 67 Cal. 380, 384, 7 P. 763; In re Estate of Meyer, 107 Cal.App.2d 799, 804, 238 P.2d 597. Section 1026 does not expressly provide how the alien must make his 'demand,' but the applicable procedure is found in other statutes. Under section 1027 of the Probate Code, estate assets not distributed by the final decree to known heirs, devisees, or legatees entitled thereto, are distributed to the State of California and are held by the state treasurer. Thus, if as in the present case an alien has not made a 'demand' under section 1026 at the time of the decree of distribution, the state treasurer takes possession of the property. When property is held under section 1027, claimants must appear and claim the estate or any part thereof in the Superior Court of Sacramento County. If the claim is not filed within the statutory period, it 'shall be forever barred, and such property, or so much thereof as is not claimed shall vest absolutely in the State.' Section 1027 further provides that 'Rights of nonresident aliens shall be governed by the provisions of Section 1026'. Since the sentence of section 1027 preceding the quoted reference to section 1026, provides that the five year period under section 1027 commences from the date of the decree making distribution to the state treasurer, the purpose of the reference to section 1026 is to call attention to the fact that when nonresident aliens succeed to the property, the five year period is computed from the 'time of succession' rather than from the date of distribution. When sections 1026 and 1027 are read together, it is clear that after the state treasurer takes possession of assets of an estate pursuant to section 1027, a 'demand' by a nonresident alien under section 1026 must be made in the Superior Court of Sacramento County in the same manner that a 'claim' would be made for other assets held by the state treasurer under section 1027, and that, after the distribution to the state treasurer, the only difference between the two classes of property is that in the case of a nonresident alien the five year period for making the claim is computed in a different manner. The Attorney General contends that a 'demand' under section 1026 may be made without any court action by the nonresident alien, even after the property has been distributed to the state treasurer, relying upon a dictum in State v. Smith, 70 Cal. 153, 156, 12 P. 121. In that case, however, the court was not concerned with express statutory language that after distribution to the state treasurer a claim to the property could be made only in the Superior Court of Sacramento County.

The determinative question on this appeal is whether the five year period set forth in section 1026 should be extended because of the disability suffered by petitioner.

In the present case the nonresident alien was a citizen and resident of Greece during the period when the United States was at war with Germany. As a resident of an enemy-occupied country she came within the provisions of section two of the Trading With the Enemy Act. 50 U.S.C.A.Appendix, § 2; Drewry v. Onassis, 266 App.Div. 292, 42 N.Y.S.2d 74, 78, affirmed without opinion 291 N.Y. 779, 53 N.E.2d 243; The Rita Maersk, D.C., 52 F.Supp. 56, 59, affirmed U. S. v. Grain Importers, 1 Cir., 144 F.2d 921; Compagnie Francaise de L'Afrique Occidentale v. The Otho, D.C., 57 F.Supp. 829, 148 A.L.R. 1423. She was thus unable to maintain a proceeding in a California court for the recovery of her property. Trading With the Enemy Act, § 7, 50 U.S.C.A.Appendix, § 7; Ex parte Colonna, 314 U.S. 510, 511, 62 S.Ct. 373, 86 L.Ed. 379; Meier v. Schmidt, 150 Neb. 647, 648, 35 N.W.2d 500, 137 A.L.R. 1355. Moreover, section 3 of the Trading With the Enemy Act, 50 U.S.C.A.Appendix, § 3, prohibited residents of Greece from communicating with anyone in this country 'except in the regular course of the mail' and during the German occupation mail service with Greece was suspended. Postal Bulletin No. 18344, Nov. 28, 1941; Postal Bulletin No. 18773, Nov. 21, 1944. It thus was impossible for Foteini Caravas or her heirs in Greece to communicate with persons in this country, or to file an action in a California court if communication could be had.

Petitioner contends that proceedings under sections 1026 and 1027 are subject to sections 354 ¹ and 356 ² of the Code of Civil Procedure. This contention must be sustained. A 'disability' under section 354 and a 'statutory prohibition' under section 356 are both present since the Trading With the Enemy Act prevented petitioner from filing a claim to the property. The word 'action' in sections 354 and 356 includes a 'special proceeding of a civil nature.' Code Civ.Proc. § 363. When a claim is filed in the Superior Court of Sacramento County pursuant to sections 1026 and 1027, the applicable procedure is that outlined in section 1272 and 1272a of the Code of Civil Procedure, Ebert v. State of California, 33 Cal.2d 502, 509, 202 P.2d 1022; see amendment to section 1027 by Stats.1951, ch. 1459, § 1, and those sections are in Part III of the Code of Civil Procedure, entitled 'Special Proceedings of a Civil Nature'. It is thus clear that the act of filing a claim in the Superior Court of Sacramento County under sections 1026 and 1027 is the 'COMMENCEMENT OF AN ACTION' WITHIN SECTIons 354 and 356. taketa v. state board of Equalization, 104 Cal.App.2d 455, 459, 231 P.2d 873 (mandate to set aside order revoking liquor license); People v. Grant, 52 CalApp.2d 794, 800, 127 P.2d 19 (proceeding under section 325 of Penal Code to forfeit money taken from slot machines); Wells v. California Tomato Juice, Inc., 47 Cal.App.2d 634, 637, 118 P.2d 916 (proceeding to enforce mechanic's lien).

Moreover, although sections 1026, 1027, 1272 and 1272a do not expressly refer to suspension of the limitation period when war has prevented access to the Superior Court of Sacramento County to file a claim, it is an established principle of international and municipal law that a statute of limitation is tolled during the period when the existence of a state of war prevents access to the courts, whether or not the particular statute of limitation expressly provides for such suspension thereof. Kolundjija v. Hanna Ore Mining Co., 155 Minn. 176, 179, 193 N.W. 163; Wirtele v. Grand Lodge, A. O. U. W., 111 Neb. 302, 305, 196 N.W. 510; Siplyak v. Davis, 276 Pa. 49, 52, 119 A. 745; Inland Steel Co. v. Jelenovic, 84 Ind.App. 373, 376, 150 N.E. 391; 54 C.J.S., Limitations of Actions, § 259; 137 A.L.R. 1454. 'All statutes of limitations are based on the assumption that one with a good cause of action will not delay bringing it for an unreasonable period of time; but, when a plaintiff has been denied access to the courts, the basis of the assumption becomes destroyed.' Frabutt v. New York, Chicago & St. Louis R. Co., D.C., 84 F.Supp. 460, 466. A typical case is Hanger v. Abbott,...