Hosova's Estate, In re

• Decision Date: 29 November 1963
• Docket Number: No. 10457,10457
• Citation: 143 Mont. 74,387 P.2d 305
• Parties: In the Matter of the ESTATE of Anna HOSOVA, Deceased. Bozena VINSOVA and Antonin Hosa, Petitioners and Appellants, v. The STATE of Montana, Defendant and Respondent.
• Court: Montana Supreme Court

Page 305

387 P.2d 305

143 Mont. 74

In the Matter of the ESTATE of Anna HOSOVA, Deceased.

Bozena VINSOVA and Antonin Hosa, Petitioners and Appellants, v. The STATE of Montana, Defendant and Respondent.

No. 10457.

Supreme Court of Montana.

Nov. 29, 1963.

Rehearing Denied Dec. 16, 1963.

Charles E. Davidson (argued), Great Falls, Peter A. Schwabe (argued), Portland, Or., for appellants.

Forrest H. Anderson, Atty. Gen., Helena, N. A. Rotering (argued), Butte, for respondent.

JOHN C. HARRISON, Justice.

This is an appeal by Bozena Vinsova and Antonin Hosa, daughter and son and next of kin of Anna Hosova, deceased, from a judgment and decree entered in the estate of Anna Hosova, deceased, by the Honorable R. J. Nelson, Judge of the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade.

Anna Hosova died intestate at Louny, Czechoslovakia, on June 10, 1946, leaving an estate in Cascade County, consisting of an undivided one-half interest in certain farm lands of substantial value.

On January 27, 1960, Bozena Vinsova and Antonin Hosa, residents of Czechoslovakia, by their attorney filed a petition for determination of heirship and for order declaring reciprocity to exist. In this petition it was alleged inter alia, that reciprocity of inheritance rights between the United States and Czechoslovakia existed at the time of the death of Anna Hosova and still exists as required by R.C.M.1947, section 91-520, and prayed that their rights as heirs of the decedent be determined by the court.

The State of Montana, on March 22, 1960, filed its answer denying that such reciprocity existed on June 10, 1946, the date of death of the deceased or now exists between the United States and Czechoslovakia and prayed that 'the foreign heirs be put upon their proof in establishing heirship and proving reciprocity of inheritance and reciprocity of transfer as required by law.'

After due proceedings the matter came on for hearing before the court, sitting without a jury on October 25, 1960. By stipulation of counsel it was agreed that the testimony of expert witnesses and other material evidence on the issue of reciprocity of inheritance would cover not only the date of death of Anna Hosova, that is, June 10, 1946, but also four other cases pending in Montana involving heirs or beneficiaries in Czechoslovakia. The dates of death in these four cases are all later than the date here. However, this appeal concerns only the date of Anna Hosova's death and only evidence pertaining to that date has been reviewed.

Before going into the merits of this appeal, the court would like to make the following observations. The record in this case is somewhat confused and we are not surprised that the trial judge erred in his findings. Contributing in part to this confusion was the appellants' petition for determination of heirship and for order declaring reciprocity to exist. In their prayer for relief the appellants asked that the 'Court further determine that reciprocity of inheritance exists (emphasis supplied) and did exist at the time of the death of the deceased between the Republic of Czechoslovakia and the United States of America.' As we shall point out later, in this case whether reciprocity exists at the present time is of no import. The main source of the confusion, however, was the attempt on the part of the litigants to present in this trial evidence on the question of reciprocity which pertains to dates after 1946 when entirely different laws were in effect, both here in Montana and in Czechoslovakia.

Appellants' only specification of error is that the lower court erred in finding that reciprocity of inheritance did not exist between the United States and Czechoslovakia on June 10, 1946, the date of the death of Anna Hosova and in ordering the escheat of the distributive shares of her heirs.

It is well-settled that rights vest under our statutes immediately upon the death of a testator, Gelsthorpe v. Furnell, 20 Mont. 299, 51 P. 267; In re Clark's Estate, 105 Mont. 401, 74 P.2d 401, 114 A.L.R. 496; Montgomery v. First National Bank of Dillon, 114 Mont. 395, 136 P.2d 760; of upon the death of an intestate. In re William's Estate, 55 Mont. 63, 173 P. 790, 1 A.L.R. 1639; State ex rel. Wilson v. Musburger, 114 Mont. 175, 133 P.2d 586. Thus, as the rights were settled as of that date, we must examine the evidence in the light of the requirements of the 1946 statute governing reciprocity. In 1946, what is now presently section 91-520, R.C.M.1947, read:

'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.'

In 1953, this section was amended, and now in order to show reciprocity of inheritance it is necessary to prove, in addition to the prior requirements, that the foreign country places no restrictions upon the movement of money or property out of such country to an heir residing in the United States. R.C.M.1947 section 91-520, subd. (2). Thus, it is obvious that because such requirement was added in 1953, it was not an inherent requirement in the 1946 version of the section.

In viewing the evidence we must view it in the light most favorable to the party which prevailed in the lower court. Holland v. Konda, Mont., 385 P.2d 272, 20 St.Rep. 599. We will examine only that evidence which pertains to the date in question in order to find out if there is substantial evidence to support the finding made by the court below.

The appellants first introduced petitioner's exhibit 'A', a certificate by the Ambassador of the Republic of Czechoslovakia, which was properly admitted into evidence. See In re Spoya's Estate, 129 Mont. 83, 282 P.2d 452. In it, the Ambassador stated among other things, that Czechoslovakia allows and has always allowed nonresident aliens the right to inherit and take real and personal property from decendents' estates situated in Czechoslovakia upon the same terms and conditions as citizens of that country, unless it could be shown that the country of which the alien in question is a citizen discriminates against the rights of Czechoslovakian citizens to inherit in that country.

The appellants' first witness was Dr. Alex Bozdech of Prague, Czechoslovakia. He testified that he was education in Czechoslovakia and that he had practiced law there for many years. At the present time he is employed by a Legal Advice Bureau where he has had experience in handling cases involving persons who died in Czechoslovakia and left heirs in America and also cases where persons died in America and left heirs in Czechoslovakia. He further stated that he had testified as an expert in American courts at other times on the subject of reciprocity of inheritance. On cross-examination he denied that he was employed by the Czechoslovakian government and stated that his salary was paid by the Legal Advice Bureau, which in turn, received its money from the clients it served. On redirect Dr. Bozdech testified that in 1946 the Austrian Civil Code was still in effect and that it provided for reciprocity of inheritance. This provision was contained in Section 33 of the Austrian Imperial Code which Dr. Bozdech translated for the record. It read:

'Aliens in general have the same civic rights and duties as citizens as far as the enjoyment of such rights does not expressly require the qualification of a citizen. Aliens have also to enjoy the same rights as citizens where a doubt arises to prove that the country of which they are citizens treats citizens of this country in the same way as their own citizens as far as a specific right is concerned.'

In response to a question by appellants' counsel the witness explained that this section, as it pertained to the rights of an American citizen to inherit, were the same as a Czechoslovakian citizen. He further testified that he was convinced that since 1945 there was 'never a difficulty about any American citizen being entitled to the same rights as far as inheritance is concerned.'

Appellants then offered into evidence a group of 88 decrees of distribution by Czechoslovakian courts in which American heirs or beneficiaries received a share of real or personal property situated in that country. These decrees contained the seal of the court properly authenticated and were in substantial compliance with R.C.M.1947, Sec. 93-1001-19, and hence were properly received into evidence. In re Spoya's Estate, supra. Although most of these decrees pertain to dates other than the one in question, three of them have dates of death within three months of the date here in question. In these cases it appears that the Czechoslovakian courts decreed that American devisees and legatees were allowed to share in the Czechoslovakian estates. As was stated in In re Miller's Estate, 104 Cal.App.2d 1, 230 P.2d 667, 676, about decrees of German courts:

'* * * Obviously, then, circumstantial evidence is admissible in this type of case. Actually, how better can the effect and application of the law be proved than by showing what the German probate courts and persons charged with administering property of foreigners did under it?'

Appellants then called Dr. Zelemik Pisk, Third Secretary of the Czechoslovakian Embassy, who is also acting Chief of Consular Section of the Embassy in Washington. Dr. Pisk was born in Czechoslovakia and...