Gaspar's Estate, In re, 9306

• Decision Date: 21 October 1954
• Docket Number: No. 9306,9306
• Citation: 275 P.2d 656,128 Mont. 383
• Parties: In the Matter of the ESTATE of William GASPAR, Deceased. Teador GASPAR, Plaintiff and Appellant, v. STATE of Montana, Defendant and Appellant, and Attorney General of the United States, Defendant and Respondent.
• Court: Montana Supreme Court

Page 656

275 P.2d 656

128 Mont. 383

In the Matter of the ESTATE of William GASPAR, Deceased.

Teador GASPAR, Plaintiff and Appellant, v. STATE of Montana, Defendant and Appellant, and Attorney General of the United States, Defendant and Respondent.

No. 9306.

Supreme Court of Montana.

Oct. 21, 1954.

Ralph J. Anderson, Helena, for Teador Gaspar.

Arnold H. Olsen, Atty. Gen., J. J. McCaffery, Jr., Sp. Asst., Butte, for State of Montana.

Valentine C. Hammack, Sp. Asst. to U. S. Atty. Gen., for respondent.

FREEBOURN, Justice.

This is an appeal by the plaintiff, Teador Gaspar, and the defendant, State of Montana, from a decree determining heirship made and entered in the district court of the fourteenth judicial district of the State of Montana, in and for the County of Meagher, on the 27th day of January 1953, by the Honorable F. V. Watts, district judge presiding.

In such degree determining heirship the district court in part found:

'That William Gaspar died intestate on the 13th day of August, 1940; that at the time of his death he was a resident of Meagher County, Montana; that he left estate therein consisting of personal property.

'That he left surviving as his only heirs at law the persons whose names and relationship to said deceased are as follows, to-wit: Teador Gaspar, a brother of deceased; John Gaspar, a brother of deceased; and (Mrs.) Elena Gaspar Cornea, a sister of the deceased.

'That the said Teador (Tony) Gaspar is a resident of Meagher County, Montana.

'That John Gaspar and (Mrs.) Elena Gaspar Cornea during all times mentioned herein have been, and each of them was, a subject, citizen and resident of Rumania, residing in the town of Chisindia, Rumania. * * *

'That upon the death of William Gaspar the estate of William Gaspar descended to his heirs at law, subject to administration in the following proportions, to-wit:

'That said Teador (Tony) Gaspar is the owner of an undivided one-third thereof, now vested in him;

'Upon said death an undivided one-third thereof vested in John Gaspar, the testator's brother, a resident and citizen of Rumania;

'Upon said death an undivided one-third thereof vested in (Mrs.) Elena Gaspar Cornea, a resident and citizen of Rumania.'

When William Gaspar died on August 13, 1940, leaving property without disposing of it by will, such property immediately passed to and vested in his heirs, Teador Gaspar, a brother, John Gaspar, a brother, and Mrs. Elena Gaspar Cornea, a sister.

R.C.M.1947, Sec. 91-402, Sec. 7072, R.C.M.1921, provides: 'Intestate estate--to whom passes. The property, both real and personal, of one who dies without disposing of it by will, passes to the heirs of the intestate, subject to the control of the district court, and to the possession of any administrator appointed by that court for the purposes of administration.'

'The law is well settled in this state that where one dies intestate, title to his property, real and personal, vests immediately in his heirs. Section 7072, Rev.Codes; see In re Estate of Clark, , 74 P.2d 401 , * * * and cases therein cited. Such transfer is by operation of law, which by statute is given the same force and effect as a transfer in writing.' Gaines v. Van Demark, 106 Mont. 1, 74 P.2d 454, 456.

'* * * there can be no doubt that the rights of heirs vest under our statutes immediately upon the death of the intestate. Section 7072, Revised Codes; In re Williams' Estate, 55 Mont. 63, 173 P. 790, 1 A.L.R. 1639; State ex rel. Wilson v. Musberger, 114 Mont. 175, 133 P.2d 586; In the Matter of the Estate of Nossen, , 162 P.2d 216, * * *.' In re Giebler's Estate, 118 Mont. 44, 162 P.2d 368, 370. See also Hoppin v. Long, 74 Mont. 558, 241 P. 636; Lamont v. Vinger, 61 Mont. 530, 202 P. 769; Murch v. Fellows, 118 Mont. 461, 167 P.2d 842.

In In re Nossen's Estate, cited supra [118 Mont. 40, 162 P.2d 217], this court said: 'It is well settled that rights vest under our statutes immediately upon the death of a testator (section 7040, Rev.Codes [1935, R.C.M.1947, Sec. 91-225]), Gelsthorpe v. Furnell, 20 Mont. 299, 51 P. 267, 39 L.R.A. 170; In re Clark's Estate, 105 Mont. 401, 74 P.2d 401, 114 A.L.R. 496; Montgomery v. First Nat. Bank of Dillon, 114 Mont. 395, 136 P.2d 760, or upon the death of an intestate (section 7072, Rev.Codes), In re Williams' Estate, 55 Mont. 63, 173 P. 790, 1 A.L.R. 1639; State ex rel. Wilson v. Musberger, 114 Mont. 175, 133 P.2d 586.'

Since the heirs, Teador Gaspar, John Gaspar, and Mrs. Elena Gaspar Cornea were brothers and sister of the intestate William Gaspar, the distributive share of each had to be fixed by the district court at one-third each, 'equal shares,' under R.C.M.1947, Sec. 91-403, subd. 3. Such distributive shares had to be fixed so that in case of an eacheatment, Article XI, Sec. 2, of the Montana Constitution could be satisfied, it providing that, 'The public school fund of the state shall consist of * * * all estates, or distributive shares of estates that may escheat to the state * * *.' See Bottomly v. Meagher County, 114 Mont. 220, 133 P.2d 770.

Because John Gaspar and Mrs. Elena Gaspar Cornea were not citizens of the United States, but were residents of a foreign country, Rumania, they could not receive their respective one-third shares in the estate left by William Gaspar, deceased, until they met the requirements of Chapter 104, Laws of 1939, Sec. 2 (see R.C.M.1947, Sec. 91-520). This section provided on August 13, 1940, that: 'No person shall receive money or property, save and except mining property, as provided in section 25, Article III, of the Constitution of the state of Montana, as an heir, devisee and/or legatee of a deceased person leaving an estate or portion thereof in the state of Montana, if such heir, devisee and/or legatee, at the time of the death of said deceased person, is not a citizen of the United States and is a resident of a foreign country at the time of the death of said intestate or testator, unless, reciprocally, the foreign country in question would permit the transfer to an heir, devisee and/or legatee residing in the United States, of property left by a deceased person in said foreign country.' Emphasis supplied. (Amended by Chapter 31, Laws of 1951.)

In Bottomly v. Meagher County, supra [114 Mont. 220, 133 P.2d 776], this court said: 'As for alien heirs, since their rights depend upon the existence of the reciprocal permission required of their country by section 2 of Chapter 104, the burden is clearly upon them to prove its existence. In re Braun's Estate, 161 Or. 503, 90 P.2d 484.'

In In re Braun's Estate, supra [161 Or. 503, 90 P.2d 488], the Oregon Supreme Court said: 'Fritz Braun died July 26, 1937, and the record fails to disclose any evidence to the effect that at the time of his death citizens of the United States had a right to receive payment to them within the United States of moneys originating from estates of persons dying within Germany, of which country the alleged brothers and sisters of Fritz Braun are residents and citizens. It would appear that under the foregoing statute it was incumbent upon such brothers and sisters to prove that they were not precluded from receiving personal property as heirs of the decedent.'

The burden of proving such reciprocity falls upon the foreign heirs because they, being in the foreign country, are in a better position to prove the laws thereof than any other party to the heirship proceedings. The fact that such burden rests upon the foreign heirs does not mean, however, that no other party to the heirship proceedings may make such proof, where it is to their interests to do so.

Under R.C.M.1947, Sec. 91-3801, 'Proceedings to determine heirship', the district court orders that notice of the same be given 'all persons interested in said estate, * * * to appear and exhibit * * * their respective claims of heirship, ownership, or interest in said estate * * * [and] the court or judge shall thereupon acquire jurisdiction to ascertain and determine the heirship, ownership, and interest of all parties in and to the property of said deceased * * *.'

Such reciprocity being shown and such foreign heirs being residents of Rumania, their shares in the estate of said deceased, by operation of law, passed to the attorney general of the United States, successor to the rights of the alien property custodian, because Rumania was a 'designated enemy country.' See Trading with the Enemy Act, 50 U.S.C.A.Appendix, Secs. 5 and 6, with notes. Both the United States and the State of Montana were interested in securing the shares of the foreign heirs and both were proper and interested parties in such determination of heirship.

'The Alien Property Custodian's petition thus constitutes an intervention by which he claims the rights of the aliens.' In re Giebler's Estate, supra. '* * * the vesting orders have the effect of assignments by operation of law and vest the interest of the named heirs in the Alien Property Custodian.' In re Rade's Estate, 259 Wis. 169, 47 N.W.2d 891, 893.

'The Alien Property Custodian is given full authority to succeed to their [foreign heirs'] interests and to take such action as may be necessary to enforce and protect their rights.' In re Bevilacqua's Estate, 31 Cal.2d 580, 191 P.2d 752, 755.

The district court, upon the evidence submitted by the attorney general of the United States, was justified in finding and adjudging, as it did:

'That on August 13, 1940 [the date of death of William Gaspar], there existed between Rumania and the United States and/or the State of Montana a reciprocal right of United States citizens residing in the State of Montana to take a Rumanian estate by inheritance in like manner as a resident and citizen of Rumania.

'That on August 13, 1940, United States citizens, residing in the State of Montana, had the right under Rumanian law as established and administered at that time, to take personal property or the proceeds thereof derived from...