Estate of Sorensen, In re

• Decision Date: 15 April 1955
• Citation: 281 P.2d 870,44 Cal.2d 306
• Court: California Supreme Court
• Parties: ESTATE of S. P. A. SORENSEN, Deceased. Ben H. BROWN, Public Administrator, Petitioner and Respondent, and The State of California, Petitioner and Respondent, v. Petra SORENSEN, Petitioner and Appellant. L. A. 23131.

Page 870

281 P.2d 870

44 Cal.2d 306

ESTATE of S. P. A. SORENSEN, Deceased.

Ben H. BROWN, Public Administrator, Petitioner and Respondent, and The State of California, Petitioner and Respondent, v. Petra SORENSEN, Petitioner and Appellant.

L. A. 23131.

Supreme Court of California, In Bank.

April 15, 1955.

Danielson & St. Clair, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and John F. Hassler, Deputy Atty. Gen., for respondents.

EDMONDS, Justice.

The question here presented for decision concerns the right of the heirs of S. P. A. Sorensen, deceased, to the assets of his estate. The appeal is from a decree which determines, inter alia, that distribution must be made to the State of California for failure of the heirs 'to appear and demand the property within five years from the date of succession' as required by section 1026 of the Probate Code. ¹

Sorensen died intestate in 1934. His only heirs were three sisters and a brother, all of whom were nonresident aliens within the meaning of the statute. About 15 years later, bank accounts in his name were found which, with interest, amounted to $1,150.

Until notified of these facts by the public administrator, none of the heirs knew of either Sorensen's death or the existence of the bank accounts. A claim of interest on behalf of herself and certain other heirs was filed by Petra Sorensen, the decedent's sister and a resident of Norway. Petitions for distribution were filed by the Attorney General of California and by the Attorney General of the United States as successor to the Alien Property Custodian. Only Miss Sorensen has appealed from an order which settles the first and final account of the public administrator, determines heirship and distributes the property to the state.

It is conceded that Miss Sorensen's right of inheritance is governed by section 1026 of the Probate Code. That section fixes a period of limitation within which a nonresident alien must establish his right to succeed to the estate of a decedent or be barred from doing so. Speaking of the statutory predecessors of section 1026, ² this court has said: 'They clearly imply that upon the death of the deceased the estate vests as a conditional estate in the nonresident alien heir, subject only to the contingency that, if he fails to appear and claim the same within five years, his right ceases, and the property then vests in the state, not strictly by escheat for want of heirs, but by virtue of the effect of the statute.' Estate of Pendergast, 143 Cal. 135, 140, 76 P. 962, 964; see also People ex rel. Attorney General v. Roach, 76 Cal. 294, 296, 18 P. 407; Estate of Laurence, 84 Cal.App.2d 500, 505-506, 191 P.2d 109.

Miss Sorensen does not dispute the finding that she did not 'appear and demand' her interest within five years from the time of succession, but she asserts that she was excused from doing so because no probate or other proceeding to effect a distribution of the property was commenced during that period. She concedes, however, that this position is contrary to Estate of Pendergast, supra, 143 Cal. 135, 76 P. 962.

In the Pendergast case, probate of the estate was commenced some 23 years after the decedent's death. The heirs included four nonresident aliens, two of whom did not 'appear and claim' the property until the initiation of the probate proceeding. Insofar as the decree distributed property to the latter two heirs, it was reversed with directions to retain their shares of it in the state treasury subject to escheat proceedings. 'The provisions of the Code above quoted (former sections 672 and 1404 of the Civil Code) are clear and unambiguous,' it was said, 'and the two nonresident alien petitioners are embraced within their terms.' 143 Cal. at page 140, 76 P. at page 964.

It is urged, however, that the Pendergast case is no longer controlling. Miss Sorensen contends that it has been implidly overruled by Estate of Caravas, 40 Cal.2d 33, 250 P.2d 593, and, in any event, did not give sufficient consideration to the terms 'appear and demand', or 'appear and claim' as the statute then read. As she construes the statute, 'appear' contemplates an appearance in a legal proceeding, and 'demand' implies the existence of some one who may comply with it.

Estate of Caravas was not concerned with the effect of delaying the institution of probate proceedings beyond the five-year period specified by section 1026. That decision determined the nature of the rights of a nonresident alien arising after the property has been distributed to the state. It was unnecessary to determine what acts by a nonresident alien, before the property is distributed to the state as the result of a proceeding in probate, are sufficient to satisfy...