Estate of Meyer, In re

• Decision Date: 03 December 1951
• Citation: 107 Cal.App.2d 799,238 P.2d 597
• Court: California Court of Appeals Court of Appeals
• Parties: In re MEYER'S ESTATE. MARTIN et al. v. McGRATH, U. S. Atty. Gen. Civ. 18296.

Page 597

238 P.2d 597

107 Cal.App.2d 799

In re MEYER'S ESTATE MARTIN et al. v. McGRATH, U. S. Atty. Gen.

Civ. 18296.

District Court of Appeal, Second District, Division 3, California.

Dec. 3, 1951.

John Moore Robinson, Robert Morgan Himrod, Los Angeles, for appellants.

Harold I. Baynton, U. S. Asst. Atty. Gen., Director, Office of Alien Property, Ernest A. Tolin, U. S. Atty., Southern District of California, Clyde C. Downing, Asst. U. S. Atty., Southern District of California, Los Angeles, Valentine C. Hammack, Sp. Asst. to the Atty. Gen., James D. Hill, George B. Searls, Joseph Laufer, Attys., Department of Justice, Washington, D. C., for respondent.

VALLEE, Justice.

Appeal by Irma Martin and Rolf Jansen, distributees of a portion of the above entitled estate, from that part of a decree of final distribution which distributed to respondent Attorney General of the United States two-thirds of the estate which descended to nonresident alien heirs.

Bertha Meyer, a national and resident of Germany, died intestate in Bremen, Germany, on August 2, 1924. Her heirs were a daughter, Emilie Bredehorst, and three grandchildren, Irma Martin and Hans and Rolf Jansen, children of a predeceased daughter, all of whom were residents and nationals of Bremen, Germany, at the time of her death. Rolf Jansen entered the United States in June, 1929, and became a citizen in 1941. Irma Martin entered the United States in 1939, and became a citizen in 1945. Emilie Bredehorst and Hans Jansen remained in, and at all times have been nationals and residents of, Bremen. Decedent left personal property in California, consisting of 300 shares of the stock of Honolulu Oil Corporation and cash representing dividends which had accumulated since 1941, when they were frozen by Executive Order No. 8785, ¹ issued June 14, 1941, which extended freezing controls initiated by Executive Order No. 8389, ² issued April 10, 1940, by the President, pursuant to the powers vested in him by section 5(b) of the Trading with the Enemy Act, ³ to assets of German nationals.

Decedent's estate in California was not administered until October 22, 1948, when Irma Martin was appointed administratrix. On November 17, 1949, Irma Martin filed with the probate court two identical instruments executed in Bremen, Germany, on August 22, 1949, by Emilie Bredehorst and Hans Jansen, entitled 'Waiver of Interest,' by which they waived 'all right to participate in the distribution' of the estate in California.

On January 20, 1950, respondent attorney general, as successor to the alien property custodian, ⁴ vested in himself all the right, title, interest, and claim of any kind of Emilie Bredehorst and Hans Jansen in the estate by virtue of vesting order No. 14276.

On December 1, 1950, Irma Martin filed her final account, report, and petition for final distribution, alleging that Emilie Bredehorst and Hans Jansen had waived 'all claim, right, title or interest' in the estate, that she, Irma Martin, and Rolf Jansen were decedent's sole heirs, and prayed that the estate be distributed to them, share and share alike.

Objections to the petition were filed by respondent attorney general, in which it was alleged that Emilie Bredehorst and Hans Jansen were residents and nationals of Germany when decedent died on August 2, 1924, and 'aliens not residing within the United States or its territories'; that waivers executed by the German nationals were 'in contravention of the provisions of the Trading with the Enemy Act, as amended, and Executive Order 8389, as amended (6 F.R. 2897) and the Rules and regulations issued thereunder,' and were null and void and of no effect; and prayed that all the right, title, interest, and claim of the two German nationals be distributed to him, as successor to the alien property custodian.

The court made an order by which it found, among other matters, that Emilie Bredehorst was entitled to succeed to one-half of the estate, that Hans Jansen, Rolf Jansen and Irma Martin were each entitled to succeed to one-sixth thereof, and that respondent attorney general was entitled to receive distribution of the interests of Emilie Bredehorst and Hans Jansen by virtue of the vesting order.

Statutes governing the right of inheritance in force at the time of death control the disposition of property left by an intestate. ⁵ Under the statute in force on August 2, 1924, Emilie Bredehorst, as surviving daughter, succeeded to one-half of the estate, and Irma Martin and Hans and Rolf Jansen, children of a predeceased daughter, each succeeded to one-sixth of the estate. Civ.Code, § 1386, subd. 1, now Prob.Code, § 222. However, since these heirs were nonresident aliens at the time of decedent's death, they were required, under sections 672 ⁶ and 1404 OF THE CIVIL CODE⁷, then in force, to appear and claim their succession within five years after decedent's death, or be barred from taking.

Appellants' position is that the nonresident heirs were barred from succeeding to the estate by virtue of former Civil Code sections 672 and 1404, that the entry of Rolf Jansen into the United States in 1929 'prevented the State of California from proceeding to declare an escheat of the estate,' and that since no escheat proceedings were commenced by the State, appellants became entitled to the whole thereof.

Respondent contends that the Civil Code sections were suspended and controlled by the treaty of 1828 with Prussia. ⁸ Appellants say that the treaty was abrogated by World War I, was no longer in effect in 1924, and that the treaty with Germany of December 8, 1923, ⁹ was inapplicable, as it was not proclaimed until October 14, 1925, after decedent's death.

The treaty of 1828 with Prussia was not controlling. Bertha Meyer died a citizen of Bremen in 1924. Bremen was not a part of Prussia in 1828 or in 1924. ¹⁰ The controlling treaty was the treaty between the United States and the Free Hanseatic Republics of Lubeck, Bremen, and Hamburg, signed December 20, 1827. ¹¹ Article VII of the Bremen treaty ¹² clearly governs the right of succession to real and personal property, and protects the right of citizens of each of the contracting parties reciprocally to own, dispose of, and transmit personal property situated in the other country, free from provisions or restrictions which discriminate because of alienage. No limitation is placed on the right of citizens of Bremen.

The provisions of the treaty of 1827 with Bremen, if in force in 1924, were the supreme law of the land and superseded all local laws inconsistent with its terms. To the extent that our statutes conflicted with the treaty, the former were superseded by the latter, which must control. ¹³

Under our laws in force in 1924, the date of death of decedent, the property of a person who died intestate vested in his heirs immediately upon the death of the ancestor. If the heirs were citizens of the United States, they became vested immediately with the entire estate of the ancestor by a title which was indefeasible except for the purposes of administration in the manner and for the purposes provided by law; but if such heirs were nonresident aliens, the estate which vested in them upon the death of the ancestor was not an absolute or indefeasible estate, but was a conditional estate, upon the condition subsequent that if they failed to appear and claim the same within five years, their right ceased. The nonresident alien, under our law unaffected by a treaty, did not enjoy the same right to succeed to personal property as citizens of the United States. ¹⁴ The nonresident alien heirs of Bertha Meyer did not appear and claim their succession within five years after her death. Therefore, unless their right to succeed was affected by a treaty, they were barred from taking under our law as it existed in 1924.

The effect of war upon existing treaties of belligerents has been the subject of much discussion. The old doctrine, sometimes asserted by the older writers, that war ipso facto annuls treaties of every kind between the warring nations, is repudiated by the great weight of modern authority; and the view now commonly accepted is that whether the stipulations of a treaty are annulled by war depends upon their intrinsic character. ¹⁵ The authorities appear to be in accord that there is nothing incompatible with the policy of the government, with the safety of the nation, or with the maintenance of war in the enforcement of dispositive treaties or dispositive parts of treaties. Such provisions are compatible with, and are not abrogated by, a state of war. ¹⁶

We therefore hold that the rights of Emilie Bredehorst and Hans Jansen to inherit from Bertha Meyer, under the treaty with Bremen, were not cut off by the declaration of war between the United States and Germany. There remains the question whether the right of citizens of Bremen to inherit was affected by what occurred after the war of 1917-18.

The treaty of peace between the United States and Germany, proclaimed November 14, 1921, referring to the Treaty of Versailles, provided: '(1) That the rights and advantages stipulated in that Treaty for the benefit of the United States, which it is intended the United States shall have and enjoy, are those defined in * * * Parts * * * X * * *.' 42 Stat. 1939. Other pertinent clauses are set forth in the margin. ¹⁷ The Treaty of Versailles stipulated in Article 289 of Part X: 'Each of the Allied or Associated Powers, being guided by the general principles or special provisions of the present Treaty, shall notify to Germany the bilateral treaties or conventions which such Allied or Associated Power wishes to revive with Germany * * *. A period of six months from the coming into force of the present Treaty is allowed to the Allied and Associated Powers within which to make the notification. Only those bilateral treaties and conventions which have been the subject of such a notification shall be revived between the...