Estate of Horman, In re

Decision Date13 October 1970
Citation11 Cal.App.3d 1165,90 Cal.Rptr. 439
PartiesIn re ESTATE of John HORMAN, Deceased. STATE of California, Objector and Appellant, v. Vasilisa Pavlovna MALENKO et al., Claimants and Respondents. Civ. 9825.
CourtCalifornia Court of Appeals Court of Appeals

Thomas C. Lynch, Atty. Gen., Elizabeth Miller and Ariel C. Hilton, Deputy Attys. Gen., for objector and appellant.

Slaff, Mosk & Rudman, and Edward Mosk, Hollywood, for claimants and respondents.


KAUFMAN, Associate Justice.

The State of California appeals from a decree determining that 24 nonresident aliens are entitled to inherit the estate of John Horman. The State contends that four of the heirs (hereinafter claimants) did not 'appear and demand' their interest in the estate within five years from the 'time of succession' as required by Probate Code, section 1026, and that these interests should escheat to the State. 1


John Horman died intestate December 25, 1961 in Orange County, leaving an estate in excess of $450,000. His survivors are 24 persons, including the claimants herein, who, at the date of his death were, and now are, citizens of the U.S.S.R. and reside in various parts of the Soviet Union. The Public Administrator was appointed administrator of the estate in January 1962. In January 1965, less than five years after the date of death, the State of California filed a petition to determine heirship pursuant to Probate Code, section 1080, alleging that the decedent left no surviving spouse or kindred; that there were no heirs entitled to take the estate; and that the State of California was entitled to distribution of the estate as escheated property. There was no allegation of any kind indicating that the State was relying on any failure to comply with Probate Code, section 1026. Indeed, such would have been improper at that point, for the five years had not then elapsed. For purposes of Probate Code, section 1026, 'time of succession' means date of death. (Estate of Caravas, 40 Cal.2d 33, 37-38, 250 P.2d 593; Estate of Laurence, 84 Cal.App.2d 500, 504, 191 P.2d 109.)

Within five years of the date of death, all of the survivors except claimants 'appeared and demanded' by filing in the heirship proceeding statements of interest or, in one case, a separate petition to determine heirship. Included in one of the statements of interest was the claim of Stepan Andreevich Lavrik.

On March 17, 1967, after the expiration of the five-year period, and five days before the firsty trial, a 'Second Amended Statement of Interest' was filed by Stepan Andreevich Lavrik in which he alleged that the statements of interest and amended statement of interest theretofore filed were true and correct except that, in addition to himself, his parents had seven other named children; that the surviving children and the survivors of those children who were deceased were those persons named in the 'Second Amended Statement of Interest,' to wit, the four claimants herein. It was stated that the 'Second Amended Statement of Interest' was filed on behalf of claimants and was intended as a statement of interest on their behalf. This document was signed by Slaff, Mosk & Rudman by Edward Mosk as 'Attorneys for Petitioner.' It bears at the top of the first page under the printed name and address of said attorneys the designation 'Attorneys for Claimants.' (Emphasis supplied.)

On March 22, the matter went to trial on the aforesaid pleadings. At trial it was the State's position that the survivors had not sufficiently established their relationship to the decedent. At no time during the trial did the State assert that claimants had failed to comply with Probate Code, section 1026, nor did the State at this first trial assert that Slaff, Mosk & Rudman were not authorized to represent claimants nor that claimants were not properly before the court. Judgment was for the State. The survivors made motions to reopen and for new trial. Both motions were denied. All 24 survivors, including claimants, appealed from the judgment and the orders denying these motions. On appeal, the judgment was reversed. (Estate of Horman, 265 Cal.App.2d 796, 71 Cal.Rptr. 780.) On the appeal no mention was made of the Probate Code, section 1026 problem, and the problem was not expressly determined.

On Monday, February 3, 1969, one day prior to the date set for retrial, the State filed a pleading entitled, 'Answer to Amended Statement of Interest,' in which, for the first time, the State asserted claimants' failure to 'appear and demand' within the five-year period prescribed by section 1026. 2

When the matter came on for trial the next day, counsel for claimants moved to strike the State's 'Answer to Second Amended Statement of Interest,' arguing vigorously that the State had waived the requirement of section 1026 by failing to assert it until so late a date and should be estopped from now attempting to do so. At the conclusion of the trial, the motion to strike was renewed.

The trial court declined to strike the State's answer, but gave judgment for claimants, concluding that 'Probate Code 1026 requiring [nonresident] alien heirs to claim within five years of date of death of the decedent was tolled between Sptember 12, 1961 and August 2, 1966.'

This conclusion was based upon the court's finding as follows:

'11. * * * It is true that said claimants had no effective manner in which to appear herein during the period of time commencing with the opening of the within eestate and ending upon their appearance herein in that between November 8, 1961 when hearing was denied by the Supreme Court of California in Estate of Gogobashvele [sic] [Gogabashrele], 195 CA2d 503 , and August 2, 1966 when the Supreme Court changed the law of California in Estate of Larkin, 65 C2d 60 [52 Cal.Rptr. 441, 416 P.2d 473], the law of the State of California prevented alien heirs residing in the USSR, irrespective of the merits of their claims in California estates, from inheriting their shares of California estates by reason of the operation of Probate Code 259 as interpreted in Estate of Gogobashvele [sic]. That to have required said claimants to have appeared herein under such state of law would have required them to perform an idle act in that said claimants, during such period, were unable to obtain any effective relief in the courts of this state, and to that extent the courts of this state were effectively closed to them.'


On this appeal claimants contend (1) that the trial court was correct in its conclusion that the period prescribed by Probate Code, section 1026 was tolled; (2) that, even if the trial court's conclusion was erroneous, the State had waived the requirement of the section and was precluded from asserting it at the second trial; and (3) that, if the judgment cannot be sustained on either of these bases, Probate Code, section 1026 is unconstitutional for a number of reasons.

The State contends (1) that the trial court was incorrect in concluding that the five-year period prescribed by section 1026 was tolled, and (2) that in any event, claimants still have not properly appeared and demanded because the 'Second Amended Statement of Interest' was not filed by them but by Stepan Lavrik and his attorneys.


The State urges that the period prescribed in Probate Code, section 1026 is not a statute of limitations but, rather, a substantive aspect of our probate law, divesting a nonresident alien of his interest if he fails to appear and demand within the time prescribed. The cases do indicate the substantive nature of the section. (See Estate of Sorensen, 44 Cal.2d 306, 308, 281 P.2d 870; Estate of Romaris, 191 Cal. 740, 744, 218 P. 421; Estate of Pendergast, 143 Cal. 135, 140, 76 P. 962; Estate of Laurence, supra, 84 Cal.App.2d 500, 505-506, 191 P.2d 109.) Be that as it may, however, it is established that the five-year periods prescribed by sections 1026 and 1027 of the Probate Code are subject to tolling under appropriate circumstances. (Estate of Caravas, supra, 40 Cal.2d 33, 41-42, 250 P.2d 593; Estate v. Spinosa, 117 Cal.App.2d 364, 370-372, 255 P.2d 843.)

The question remains, however, whether on the facts of the instant case, the court below was justified in finding the period tolled. Claimants urge that it would have been futile for them to 'appear and demand' between the decision in Estate of Gogabashvele, 195 Cal.App.2d 503, 16 Cal.Rptr. 77, and the decision in Estate of Larkin, 65 Cal.2d 60, 52 Cal.Rptr. 441, 416 P.2d 473. Gogabashvele was decided September 12, 1961 and held that reciprocal rights of inheritance as were required by section 259 of the Probate Code 3 did not exist between the United States and the U.S.S.R. Larkin was decided August 2, 1966 and, in effect, disapproved Gogabashvele. Claimants call our attention to cases holding that, despite mandatory language, the five-year period prescribed in Code of Civil Procedure, section 583 for bringing a case to trial is tolled by circumstances showing physical or legal impossibility, futility or such impracticability as to amount to practical impossibility (Brunzell Constr. Co. of Nevada v. Wagner, 2 Cal.3d 545, 550-551, 86 Cal.Rptr. 297, 468 P.2d 553; Rose v. Knapp, 38 Cal.2d 114, 117, 237 P.2d 981 and cases there cited; Christin v. Superior Court, 9 Cal.2d 526, 530-533, 71 P.2d 205), and urge that we apply the doctrine of these casew to Probate Code, section 1026.

We could agree with claimants that the implied exeptions found in the cases dealing with Code of Civil Procedure, section 583 should be, on a proper showing, applied to Probate Code, section 1026. (Cf. Estate of Caravas, supra, 40 Cal.2d 33, 39-41, 250 P.2d 593.) The difficulty is that the circumstances presented by the case at bench do not demonstrate ligal or physical impossibility, practical impossibility or futility. In the first place,...

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