Christoff's Estate, In re

• Decision Date: 02 December 1959
• Citation: 219 Or. 233,347 P.2d 57
• Parties: In the Matter of the ESTATE of John CHRISTOFF, deceased; Carl A. Dahl, Administrator de Bonis Non of the Estate of John Christoff, deceased, Respondent. STATE of Oregon, Acting by and through the STATE LAND BOARD, Petitioner-Respondent, v. William P. ROGERS, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant (three cases). In the Matter of the ESTATE of John MICHAILOFF, deceased; Joseph R. Cherkezov, Administrator of the Estate of John Michailoff, deceased, Respondent. In the Matter of the ESTATE of Peter Mito CHERNACOFF, deceased; State Ivanove, Administrator of the Estate of Peter Mito Chernacoff, deceased, Respondent.
• Court: Oregon Supreme Court

Page 57

347 P.2d 57

219 Or. 233

In the Matter of the ESTATE of John CHRISTOFF, deceased;

Carl A. Dahl, Administrator de Bonis Non of the

Estate of John Christoff, deceased, Respondent.

STATE of Oregon, Acting by and through the STATE LAND BOARD, Petitioner-Respondent, v. William P. ROGERS, Attorney General of the United States, as

Successor to the Alien Property Custodian,

Appellant (three cases).

In the Matter of the ESTATE of John MICHAILOFF, deceased;

Joseph R. Cherkezov, Administrator of the Estate

of John Michailoff, deceased, Respondent.

In the Matter of the ESTATE of Peter Mito CHERNACOFF,

deceased; State Ivanove, Administrator of the

Estate of Peter Mito Chernacoff,

deceased, Respondent.

Supreme Court of Oregon, Department 2.

Argued Sept. 17, 1959.

Decided Dec. 2, 1959.

Lillian C. Scott, Washington, D. C., argued the cause for appellant. With her on the briefs were Dallas S. Townsend, Asst. Atty. Gen., C. E. Luckey, U. S. Atty. for the District of Oregon, Portland; Victor E. Harr, Asst. U. S. Atty., Portland; George B. Searls, Irwin A. Seibel, and John J. Pajak, Washington, D. C.

Catherine Zorn, Asst. Atty. Gen., argued the cause for petitioner-respondent. With her on the brief was Robert Y. Thornton, Atty. Gen.

Before McALLISTER, C. J., and WARNER, SLOAN and KING, JJ.

WARNER, Justice.

This is an appeal from decrees in three separate estates, each of similar tenor in proceedings for escheat in each of the three estates. All were adverse to the claims of the United States Attorney General, appearing in his capacity as Alien Property Custodian, claiming that the interests of the several heirs be awarded to the Custodian by reason of Vesting Orders filed by him in each estate. The state of Oregon, acting by and through the State Land Board, is the petitioner-respondent, and William P. Rogers, ¹ as Attorney General of the United States, and successor to the Alien Property Custodian, is defendant-appellant. We will refer to the petitioner-respondent as 'the State' and to the appellant as 'the Custodian.'

By reason of certain factors of law and fact common to the escheat proceeding in each estate, they were consolidated in the court below for the purpose of trial and later consolidated in this court for the purpose of argument.

The decedent in each instance was of Bulgarian descent, residing in Multnomah County, Oregon, at the time of his death, and who, dying intestate, left heirs who were residents of Bulgaria.

The decedent John Christoff died October 21, 1940, leaving as his only heirs a brother and two sisters. The decedent Peter Mito Chernacoff died August 23, 1944, with a wife and son surviving. The decedent John Michailoff, who died January 20, 1945, was survived by a half brother. All three decedents left as assets personal property of values varying from $3,153 to $3,500. Michailoff, alone, was the owner of real property at the time of his death. But real property was not within the reach of § 61-107, O.C.L.A., the state statute applicable at the time of the death of the three decedents.

In each estate the then Custodian, duly made and filed a vesting order under the authority of the Trading with the Enemy Act (40 Stat. 411, as amended, 50 U.S.C.A.Appendix, § 1 et seq). By each vesting order the Custodian sought to vest in himself for the benefit of the United States whatever right, title, interest or claim each group of Bulgarian heirs had in or to the estate of their respective decedent relative.

Shortly after the initiation of the probate in the three estates mentioned and before the closing of the probate in each estate, the State filed a petition for escheat seeking to have the personal property of the respective decedents declared as escheated to the Oregon State Land Board. The State predicates its claim upon the ground that each decedent died without heirs or next of kin entitled to receive any of the personal property of his relative's estate. The State relies solely upon § 61-107, O.C.L.A., ² supra, in support of its contention.

Both parties agree upon the foregoing statement of basic facts.

In the hearing in the circuit court, the evidence adduced was limited solely to the question of whether or not the laws of Bulgaria, at the time of the death of each decedent, met the standards established by § 61-107, O.C.L.A., so as to entitle each Bulgarian nonresident national to take and receive his respective inheritance in Oregon.

In the decrees entered in each estate, the probate court found that the evidence failed to establish that the laws of Bulgaria in effect as of the date of each decedent's death disclosed the existence of the rights of American citizens as required by § 61-107, O.C.L.A. The court, therefore, granted an order of escheat as to the personal property in each estate. It is from these decrees that the Custodian appeals.

As we have previously indicated, the controlling statute in this matter is § 61-107, O.C.L.A. It reads:

'The right of aliens not residing within the United States or its territories, to take personal property or the proceeds thereof in this state by descent or inheritance, is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take personal property or the proceeds thereof in like manner within the countries of which said aliens are inhabitants or citizens, and upon the right of citizens of the United States to receive, by payment to them within the United States, or its territories, moneys originating from estates of persons dying within such foreign countries. In the event no heirs other than said aliens are found eligible to take such property, said property shall escheat to the state of Oregon, as provided by law in those cases where a person shall die intestate without heirs.' (Emphasis ours.)

The act requires from the nonresident alien heir two phases of proof as a condition precedent to taking and receiving any personal property by descent or inheritance: (1) proof of a reciprocal right of American citizens to take personal property by descent or inheritance, or its proceeds, from a foreign estate as aliens are permitted to take in Oregon; and (2) proof of the right of American citizens to receive by payment to them within the United States or its territories, moneys originating from estates of persons dying in such foreign country.

The burden of such proof rests upon the nonresident alien claiming as an heir. But in the instant matter, the burden reposes upon the appellant Custodian who by vesting orders has succeeded to the interests of the nonresident alien relatives of the several decedents. See In re Estate of Krachler, supra (199 Or. at page 473, 263 P.2d 769); In re Braun's Estate, 161 Or. 503, 514, 90 P.2d 484.

It is contended by the Custodian that the Bulgarian laws permit citizens of the United States not residing in Bulgaria 'to take' and 'to receive' inheritance of personal property or the proceeds thereof in the same manner that Oregon law gives to Bulgarian legatees.

The position of the State, as reflected by its brief, is to the contrary. However, during the course of oral argument, counsel for the State conceded that the sole issue before us is the 'right to receive.' This is tantamount to an admission that the law of Bulgaria, as of the dates of death of the several decedents, did confer on American legatees the same 'right to take' which the Oregon law gives to Bulgarian legatees. We concur in the concession made by the State and, therefore, we need only to address ourselves to a consideration of the 'right to receive.'

The laws of Oregon carry no inhibitions nor limitations on the right of an heir or legatee to receive whatever personal property the heir is found entitled 'to take' once an order of distribution is made. The statement applies with equal force to alien beneficiaries who are citizens or inhabitants of foreign countries and the laws of the country of their residence accord to citizens of the United States the same rights and privileges in like manner which Oregon grants to aliens. This court has not heretofore had occasion to construe or apply that part of § 61-107, O.C.L.A., supra, relating to the 'right to receive.' It is apparent from an examination of the earlier cases that the results turned upon a determination of the nonexistence of a reciprocal 'right to take,' and, therefore, precluded the necessity for consideration of any question relating to the 'right to receive.' This we now meet for the first time. Although in In re Estate of Krachler, supra, 199 Or. at page 478, 263 P.2d at page 792, we took note of certain German law bearing on the 'right to receive,' it was said at page 499 of 199 Or., at page 792 of 263 P.2d: 'We deem it unnecessary to the decision of this case for the court to consider what rights Americans might have had to 'receive by payment to them within the United States * * * the amount of the legacies.' If there was no right to inherit, the question as to the right to receive would be immaterial. * * *'

We cannot accept as correct, the Custodian's suggestion that the 'right to receive' payment, as well as the right to take an inheritance, is a reciprocal right. When we read § 61-107, O.C.L.A., supra, we find that the right to receive by payment in the United States or its territories is not there qualified as a reciprocal right as is the right to take by inheritance. It is clearly stated that the right of nonresident aliens to take or inherit depends 'upon the [further] right of citizens of the United States to receive, by payment to them within the United States, or its territories, moneys originating' from foreign estates. (Emphasis ours.) This secondary 'right' is not modified by the word 'reciprocal.' In this respect, the Oregon statute is unlike the California statute, wherein the word 'receive' is not employed, nor is there any secondary condition as in § 61-107, O.C.L.A., supra, that the...