Gogabashvele's Estate, In re

• Decision Date: 12 September 1961
• Citation: 195 Cal.App.2d 503,16 Cal.Rptr. 77
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of David GOGABASHVELE, Deceased. STATE of California and the United States of America, Appellants, v. Eduard KAPANADZE and Elena Georgobiani, Respondents. Civ. 6485.

Page 77

16 Cal.Rptr. 77

195 Cal.App.2d 503

In the Matter of the ESTATE of David GOGABASHVELE, Deceased.

STATE of California and the United States of America, Appellants, v. Eduard KAPANADZE and Elena Georgobiani, Respondents.

Civ. 6485.

District Court of Appeal, Fourth District, California.

Sept. 12, 1961.

Rehearing Denied Oct. 6, 1961.

Hearing Denied Nov. 8, 1961.

Laughlin E. Waters, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Los Angeles, Stanley Mosk, Atty. Gen., and Bonnie Lee Martin, Deputy Atty. Gen., for appellants.

Gostin & Katz and Irwin Gostin, San Diego, for respondents.

GRIFFIN, Presiding Justice.

The United States and State of California appeal from a judgment which would distribute an estate, appraised at approximately $68,000, to the Consul General of the Union of Soviet Socialist Republics as attorney in fact for citizens of the Soviet Union as sole heirs of this estate.

David Gogabashvele, the decedent herein, was a patient in the United States Naval Hospital, San Diego, California, at the time of his death on August 14, 1956. He was a veteran of the Armed Forces of the United States and for about six weeks prior to his death he had been cared for by the Veterans Administration in the Naval Hospital. On the day before his death, the decedent executed his last will and testament. By his will, he left his entire estate to his sister, Nadia Kapanadze, a citizen and resident of the Soviet Union, as his sole heir. It provided that if she predecease him, then all his property should go to his next of kin. Unbeknownst to decedent, the sister died before he made his will.

The will was admitted to probate and the estate was appraised at $68,510.21, of which approximately $25,000 is realty and the balance of $43,510.21 is personal property largely in the form of savings accounts. Eduard Kapanadze and Elena Georgobiani, citizens and residents of the Soviet Union (Republic of Georgia), filed statements of interest, claiming that Nadia predeceased the testator; that they are the only children and heirs of Nadia and the only heirs of decedent and that they are entitled to the estate of the testator.

The United States filed a statement of interest, claiming all of the personal property of the estate as trustee for the General Post Fund. The United States contends that there are no reciprocal inheritance rights with the Soviet Union; that under the provisions of Probate Code, section 259, the Russian claimants are not entitled to receive the estate, and that the decedent died intestate. The United States claims that it is entitled to the personal property of the estate under the 'Care Contract Law' (38 U.S.C.A. §§ 5220-5228; formerly 38 U.S.C.A. §§ 17 through 17j), in return for the hospital care and treatment decedent received from the Veterans Administration.

The State of California asserted a claim to all of the property of the estate, contending that there are no reciprocal rights of inheritance with the Soviet Union, that there are no known heirs entitled to take, and that under Probate Code, sections 259, 259.1 and 259.2, the entire estate should escheat to the State.

Since the trial court held that the Russian claimants were entitled to receive the entire estate, it did not decide the issue between the United States and California as to whether the United States is entitled to receive the personalty under the provisions of the Care Contract Law.

The only issue presented by this appeal is whether on August 14, 1956, there existed reciprocal rights upon the part of citizens and residents of the United States to take real and personal property by succession or testamentary disposition from estates in the Soviet Union on the same terms and conditions as citizens and residents of the Soviet Union would be entitled to take such estates. This is the test imposed by Probate Code, section 259. The burden of establishing the existence of the reciprocal rights is upon the nonresident alien claimants. Prob.Code, sec. 259.1. The term 'reciprocal right,' as that term is used in Probate Code, section 259, contemplates a taking of estates by testamentary disposition or succession as a legal right enforceable without exception in the courts of the alien's country, where such a taking is merely a matter of sufferance there is no 'reciprocal right' within the meaning of the code section. Estate of Miller, 104 Cal.App.2d 1, 12, 230 P.2d 667; Estate of Leefers, 127 Cal.App.2d 550, 274 P.2d 239. This statute is constitutional. Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633.

Thus, where the right of a citizen of the United States to receive a legacy from a foreign nation is conditioned upon obtaining the 'approval' of an agency of the foreign government and the granting of permission to receive such a legacy is not regulated by objective standards but is left to the unbounded discretion of the governmental agency, there is no 'reciprocal right' as that term is used in the Probate Code. Estate of Arbulich, 41 Cal.2d 86, 91-92, 257 P.2d 433; Estate of Schluttig, 36 Cal.2d 416, 224 P.2d 695.

Although Probate Code, section 259, does not require that foreign countries have the same judicial system as ours, or even an independent judiciary, it does require that there be no discrimination shown in inheritance matters as between nationals of that country and citizens and residents of ours. Estate of Miller, supra, 104 Cal.App.2d 1, 12, 230 P.2d 667. When used in relation to claims for probate and inheritances, the word 'right' means a claim or interest that is enforceable by law. That is to say, right is a legally enforceable claim. In re Krachler's Estate, 199 Or. 448, 263 P.2d 769.

Since the amendment of Code of Civil Procedure, section 1875, in 1957, which amendment provided that this court may judicially notice the law of foreign countries, the substantial evidence rule does not apply to issues as to the meaning of foreign law presented on appeal. We are empowered to consider the applicable statutes, court decisions and constitutional provisions of foreign nations to determine their legal import without being limited by the findings of the trial court. Victor v. Sperry, 163 Cal.App.2d 518, 329 P.2d 728; Witkin, Evidence, sec. 46, p. 61-62.

Experts Agree

Various documentary and testimonial forms of advice presented to the trial court have been made available to this court, and, in addition, this court has conducted exhaustive independent research. While ultimate conclusions of some of the authorities presented to the trial court were in conflict, there is on many vital points no real disagreement. For example, there is no disagreement that in the Soviet Union (at least as far as vested rights are concerned) 'an alien not protected by international convention is practically without rights.' Freund, Vol. I, Soviet Civil Law, p. 360. It is also agreed that on August 14, 1956, there was no treaty or agreement between the Soviet Union and the United States establishing any reciprocal rights of citizens of either country to inherit. Respondents, in disagreement with their own expert, attempt to rely on the 'Litvinoff Letters' as constituting such agreement or treaty. However, in In re Bold's Estate, 173 Misc. 545, 18 N.Y.S.2d 291, it was held that said 'Letters' never reached such status. Our own examination of these 'Letters' and their history convinces us that said ruling in the Bold Estate was correct. Furthermore, the history of the Soviet Union's subsequent repeated violations of the assurances made in these Letters clearly demonstrates that the Soviet Union never considered them binding. U.S. v. Hiss, 2 Cir., 185 F.2d 822; In re Bold's Estate, supra.

Governmental Structure of the Soviet Union

Before examining the Soviet constitutional and statutory provisions bearing on inheritance rights of aliens in the Soviet Union, we deem it advisable to describe briefly the governmental organization of the Soviet Union. Our discussion in this respect is based largely on the statements of Dr. Gsovski (since 1931 head of European Law Division, Law Library, Library of Congress, a former Russian lawyer, author of several books on Soviet law), who covered this subject extensively in his discussion of Soviet law, but it is also based on an examination of the provisions of the Soviet Constitution and certain Soviet statutes. The Soviet Union is a federal state, having a written constitution and consisting of a central federal government (U.S.S.R.) and 15 Soviet Socialist Republics (S.S.R.'s) of which the Georgian Republic is one. The S.S.R.'s autonomy exists largely in the administrative field, if at all, since their budgets and their legislation are subject to approval of central government. Soviet Const., sec. 14, subsec. [d] and [k].

Internally, both the central and the S.S.R. governments are organized on the principle that there is no separation of powers. Thus, Vishinsky, one-time attorney general and later deputy minister of foreign affairs, commented on the 1936 constitution: 'We do not have the separation of powers but the distribution of functions. * * * This has nothing in common with the Montesquieu doctrine.' Similarly, Steklov, a spokesman for the government at the discussion concerning the first Soviet Constitution in 1918, wrote; '* * * While the bourgeois constitutions * * * make an artificial separation between the executive, the legislative and the judicial powers, we, in our Constitution attempted insofar as possible, to concentrate all these functions in one central organ * * *.' Vol. I, Gsovski and Grzybowski, Government, Law and Courts in the Soviet Union and Eastern Europe (hereinafter cited as 'Gsovski') (published in the U. S. by Frederick A. Praeger in 1960) pp. 20, 23-24.

The U.S.S.R. Constitution of 1936 describes the formal government of the Soviet Union and the relationship between the central government and the S.S.R.'s. The Supreme Soviet, a bicameral legislature...