Estate of Tischler
| Decision Date | 20 September 1971 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of the ESTATE of Charles TISCHLER, also called Carol Tischler, Deceased. Con S. SHEA, Public Administrator of the City and County of San Francisco, Plaintiff and Respondent, v. The STATE of California, Objector and Respondent, Carol Roland (Rolland) Tischler, Claimant and Appellant. Civ. 29278. |
Rose M. Fanucchi, San Francisco, John R. Vintilla, Cleveland, Ohio, for claimant and appellant.
Evelle J. Younger, Atty. Gen., John E. Barsell, Jr., Deputy Atty. Gen., San Francisco, for respondent.
On this appeal, we are called upon to determine whether a young Rumanian boy, Carol Roland Tischler, who is a nonresident alien, is entitled to receive the proceeds of a California bank account as heir of his father, Marc Tischler, who was the sole heir of Carol Roland Tischler's long-deceased grandfather and namesake, Carol Tischler.
The relevant facts were stipulated.
The sole asset of the estate was a bank account of Carol Tischler, alien resident of Rumania, in the Crocker-Anglo National Bank of San Francisco. On behalf of the appellant, the Public Administrator was appointed administrator of the estate. On July 11, 1966, he petitioned for distribution to appellant of the proceeds of the estate. This petition was denied, when the Attorney General objected, claiming the estate had escheated to the State of California, under Probate Code section 1026. Appeal from the order denying distribution to appellant followed.
The Attorney General's contention that the order is not appealable is directly answered by Probate Code section 1240, which provides for an appeal from an order 'determining * * * the persons to whom distribution should be made.' The corollary, that appeal lies when the order determines that distribution is not to be made to a specified person, necessarily is implied.
On January 21, 1970, almost three years after the Attorney General's initial objections had been filed, the Probate Commissioner filed a supplemental report, concluding that there had been compliance with Probate Code section 1026, and proposing to distribute the proceeds of the estate to appellant. The Attorney General again objected. On March 6, 1970, Mrs. Gramescu, through her attorneys, noticed a motion to confirm the reports of the Probate Commissioner, and the motion was taken under submission on March 25, 1970. Sixty days later, the motion to confirm was denied by minute order, and this appeal followed.
The objector and respondent relies upon Probate Code section 1026, which provided at all relevant times as follows:
'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.'
Under the facts and law deemed controlling, we hold (1) that the national emergency and legislation applicable during World War II tolled Probate Code section 1026 (Estate of Horman (1971) 5 Cal.3d 62, 70, 95 Cal.Rptr. 433, 485 P.2d 785) and (2) that in law and in fact, those entitled did appear and demand their inheritance within the specified time.
Hence, the order denying distribution of the proceeds of the estate to Debora Gramescu, as legal guardian of Carol Roland Tischler, a minor, should be reversed, and distribution ordered, as prayed.
Presidential Executive Order No. 8389, sections 1 and 3, subd. (e), 5 F.R. 1400, as of April 10, 1940, and Executive Order No. 8565, 5 F.R. 4062, blocked all transfers of funds from United States banks to Rumania. (12 U.S.C.A. § 95a, note.) This froze the $4,000 commercial account in the Crocker-Anglo Bank in San Francisco, maintained by Carol Tischler, a resident of Rumania. Thereafter Tischler died intestate in Rumania on March 4, 1942. His sole heir was his son, Marc Tischler.
On June 5, 1942, Congress declared war against Rumania. (Cong.Res. June 5, 1942, c. 325.) Thereupon the Trading With the Enemy Act (50 U.S.C.A.App. §§ 1--43, p. 19 et seq.) went into effect. (Markham v. Cabell (1945) 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165.) The assets of alien nations were transferred to the legal custody of the alien property custodian, by section 6 of that act. (Ex. Order No. 9095, as amended, 50 U.S.C.A.App., § 6, notes; 7 F.R. 1971, 5205; 10 F.R. 6917.)
Thus, the alien property custodian was vested completely with title, and was entitled to possession of, the assets of nonresident Rumanian aliens, for benefit of the United States. (Markham v. Taylor (1947) 70 F.Supp. 202, app. dis. Clark v. Taylor, 163 F.2d 940, affd. Clark v. Proper, 169 F.2d 324, affirmed 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480, rehearing den. 338 U.S. 841, 70 S.Ct. 33, 94 L.Ed. 514; cf. Estate of Zimmermann (1955) 132 Cal.App.2d 702, 283 P.2d 68; In re Gaspar's Estate (1954) 128 Mont. 383, 275 P.2d 656 (Rumanian heirs).)
Likewise, as pertaining to appearance and claim of Rumanian heirs, the Trading With the Enemy Act, Supra, § 3(c), prohibited, except under Presidential license, any correspondence with an enemy alien. (United States v. Krepper (1946) 159 F.2d 958, cert. den., 330 U.S. 824, 67 S.Ct. 865, 91 L.Ed. 1275; Welsh v. United States (1920) 267 F. 819, mand. den. 254 U.S. 607--608, 41 S.Ct. 6, 65 L.Ed. 435; cf. Farmers & Merchants Nat'l Bank v. Superior Court (1945) 25 Cal.2d 842, 843, 155 P.2d 823.)
By Executive Order No. 9788, effective October 14, 1946 (11 F.R. 11981), the function of the alien property custodian was transferred to the Attorney General. 1 Formal cessation of hostilities (Proclamation No. 2714, 12 F.R. 1) came on December 31, 1946. A treaty of peace was not concluded with Rumania until February 10, 1947, thereby terminating the restrictions under the Trading With the Enemy Act. But the treaty of peace in Article 27 provided:
(1947 U.S.Code Cong.Serv., pp. 2464--2465.)
In 1957, dealings in reference to funds in the United States belonging to Rumanian nationals still were blocked and inhibited by Presidential Executive Orders No. 9989 of August 20, 1948, and No. 10348 of April 28, 1952.
On March 30, 1960, an agreement was made between United States and Rumania which provided in part as follows: 'The Government of the United States of America will release within 30 days of the date of this Agreement its blocking controls over all Rumanian property in the United States of America.' (T.I.A.S. 4451, 11 U.S.T. 317, 319.) The release was given, apparently, as the bank was able to turn over the funds to the administrator.
As to Rumanian heirs, the operation of Probate Code section 1026 was tolled from April 10, 1940, to and including the effective date of the 1960 agreement. (Estate of Caravas (1952) 40 Cal.2d 33, 42, 250 P.2d 593.) During this period, as indicated above, the original depositor, Carol Tischler, died on March 4, 1942. His son and sole heir, Marc Tischler, died on September 19, 1957; and his son and sole heir, appearing by his guardian, is appellant.
In Estate of Caravas, Supra, 40 Cal.2d 33, 250 P.2d 593, the interrelation of Probate Code sections 1026 and 1027 was explained. By section 1026, as a substantive rule, the estate of a nonresident decedent escheats to the State unless the nonresident alien heir appears and demands the property within five years from the time of succession. To 'appear and demand' is readily defined, if an estate is probated, and is pending within five years of the death of the decedent. (Estate of Horman, Supra; cf. Prob.Code, § 1027.)
But not all situations fit into the presuppositions of the code provisions, and the current chain of circumstances is one of such situations.
Marc Tischler, the son of Carol Tischler and his sole heir, on November 29, 1946, wrote to the Crocker-Anglo Bank concerning the deposit, to which he was heir, and on January 31, 1947, was advised the bank was unable to disburse the sum to him because of the Trading With the Enemy Act. As noted above, the treaty of peace with Rumania had not yet been signed, the property in legal effect was still in the hands of the Attorney General of the United States, and remained so until April, 1960.
We conclude that by this contract, Marc Tischler had both appeared and claimed his property, and there could be no unknown owner nor inference of abandonment of the funds by him. Marc Tischler died in Rumania on September 19, 1957, before any restoration of funds to alien owners, and Carol Roland Tischler, his minor son and heir, thereupon succeeded to ownership. At the time of Marc's death in 1957, the bank account was still blocked by the executive orders, and continued so, until the agreement of March 30, 1960, provided for unblocking such accounts within thirty days.
On July 4, 1960, on behalf of the son, Mrs. Debora Tischler (now Gramescu) wrote the bank, asking for the proceeds of the account. We interpret...
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