In re Braun's Estate

• Decision Date: 16 May 1939
• Citation: 161 Or. 503,90 P.2d 484
• Parties: IN RE BRAUN'S ESTATE STATE LAND BOARD OF OREGON <I>v.</I> PORTLAND TRUST & SAVINGS BANK
• Court: Oregon Supreme Court

161 Or. 503

90 P.2d 484

IN RE BRAUN'S ESTATE STATE LAND BOARD OF OREGON

v. PORTLAND TRUST & SAVINGS BANK

Supreme Court of Oregon.

Argued April 19, 1939.

Reversed May 16, 1939.

Escheat — State land board

1. The state land board has a right to appear in probate proceedings and assert that estate should escheat to state for lack of legal heirs.

Descent and distribution — Escheat — State land board

2. The establishing of heirship in probate proceeding loses character of an ex parte showing upon appearance of state land board to assert that estate should escheat to state for lack of legal heirs, and thenceforth question of heirship is fact to be proved as any other contested matter.

Evidence — Probate — Final account

3. In probate proceeding, wherein state land board filed objections to final account of administrator and sought to escheat property to state, letter, by acting superintendent of hospital in which deceased died to trust officer in charge of deceased's property, which purported to list relatives of deceased, not being certified copy of any record on file in such institution, had no evidentiary value to determine whether deceased died without heirs.

Descent and distribution — Final account — Escheat

4. In probate proceeding wherein state land board filed objections to final account of administrator and sought to escheat property to state, correspondence between trust officer in charge of deceased's property and individuals in Germany who were supposed heirs of deceased was incompetent to establish heirship of such individuals.

Evidence — Sworn statements

5. In probate proceeding, wherein state land board filed objections to final account of administrator and sought to escheat property to state, sworn statement of supposed brother of deceased who was resident of Germany before judge of court of record of such country and duly authenticated by judge of court of record and further given authenticity by United States Consul was incompetent to establish heirship, since statement was made ex parte and without opportunity of state land board to cross-examine affiant.

Evidence — Family register

6. In probate proceeding, wherein state land board filed objections to final account of administrator and sought to escheat property

to state, photostatic copy of "extract from the family register at Pforzheim" was incompetent to establish heirship of individuals in Germany, where copy was not certified in accordance with requirements of statute.

Appeal and error — Equity suits

7. In appeals in suits in equity, supreme court tries case de novo on record made in trial court.

Descent and distribution — State land board

8. In probate proceeding, wherein state land board filed objections to final account of administrator and sought to escheat property to state, where it appeared, on appeal, that record was wholly lacking in admissible evidence on issue whether deceased left legal heirs surviving him, justice required remanding cause to circuit court with permission to those claiming to be heirs to present competent evidence.

Aliens — Right to inherit

9. Under statute providing that right of alien residing in foreign country to inherit property is dependent upon reciprocal right of citizens of United States to inherit property in like manner within the country in which alien is inhabitant or citizen, it was incumbent upon alleged brothers and sisters of deceased who resided in Germany, and who claimed to be heirs, to prove that they were not precluded from inheriting property.

Escheat — Attorney and client

10. In probate proceeding, wherein state land board filed objections to final account of administrator and sought to escheat property to state, denial of motion of state land board to require attorney acting for administrator to produce and prove authority under which he appeared on behalf of alleged German heirs, and of motion to require administrator to prove authority by which it acted on behalf of such individuals, was discretionary.

                  See 19 Am. Jur. 401
                  2 Am. Jur. 482
                  21 C.J. Escheat, § 17
                

In Banc.

Appeal from Circuit Court, Multnomah County.

GEORGE TAZWELL, Judge.

Proceedings in the matter of the estate of Fritz Braun, sometimes known as Fred Braun, deceased, wherein the state land board of Oregon filed objections to the final account of the Portland Trust & Savings Bank, as administrator of the estate of Fritz Braun, deceased. From adverse orders, the state land board appeals.

REVERSED.

Sanderson Reed, of Salem (I.H. Van Winkle, Attorney General, and J.A. Beckwith, of Portland, on the brief), for appellant.

C.H. Greene, of Portland (Beach, Simon & Greene, of Portland, on brief), for respondent.

Robert G. Clostermann, of Portland, for heirs of Fritz Braun.

BAILEY, J.

The state land board has appealed from an order of the circuit court for Multnomah county, department of probate, overruling the objections filed by the state land board to the final account of the administrator of the estate of Fritz Braun, deceased. In that order the court decreed that the decedent left surviving him as heirs at law two brothers and two sisters, all residents of Germany, and denied the land board's petition requesting that the administrator of the estate be ordered to transmit to the state treasurer the clear proceeds of the estate, on the ground that the decedent died without heirs. The land board also appealed from another order of that court in this proceeding, which will hereinafter be discussed in detail.

Fritz Braun died intestate July 26, 1937, while confined as an inmate of the state hospital in Salem, Oregon. At the time of his death he was about 67 years of age. His estate was appraised at $3,048.30. For more than 10 years preceding his death, the Portland Trust &amp Savings Bank had been acting as the guardian of his estate. Upon Braun's death that bank filed a petition to be appointed administrator of his estate, in which it was alleged that, as far as the petitioner had been able to ascertain, the decedent "left no wife, children, father or mother surviving him, nor has petitioner been able to ascertain the names, places of residence or relationship of any other heirs of said decedent". Thereafter the bank was duly appointed and qualified as administrator of the estate.

Shortly after the appointment of the bank as administrator Mr. Irelan, its assistant trust officer, who was actively in charge of the estate, discovered in the files in the guardianship proceeding a letter addressed to him as assistant trust officer and signed by Dr. J.C. Evans, acting superintendent of the Oregon state hospital, in which Dr. Evans stated that he had been instructed by Dr. Steiner, superintendent of the state hospital, to "enclose to you certain addresses of relatives in the case of Mr. Braun". The letter further stated that those relatives had been informed in letters of the details of Mr. Braun's condition. The enclosure gave the names and addresses of the following as relatives of Fritz Braun: Mary Cronk, sister, Peekskill, New York; Anna Perger, sister, 340 Perger street, Frankfort-on-the-Main, Germany; August Braun, brother, Frankfort-on-the-Main, Germany.

On July 28, 1937, Mr. Irelan addressed letters to all the three above named as relatives, informing them of the death of Fritz Braun, stating that it was the understanding of the administrator that they were the decedent's only surviving relatives, and asking them to state whether that information was correct. Answers were received from all three of those individuals. Mary Cronk wrote that she was unmarried and therefore the decedent could not have been her brother, and that she was not otherwise related to him. August Braun replied that he was a brother of the decedent and that Fritz Braun left surviving him, in addition to August, a brother named Ernst Braun, a sister, Sophie Braun, and another sister, Mrs. Anna Bingemer, residing at 340 Berger street, Frankfort-on-the-Main. In this letter it was stated that there had been a mistake and the latter sister's name was not Anna Perger. The addresses of all these alleged relatives are set forth in the letter of August Braun, and the ages of all of them except Anna Bingemer. A letter was also received by the bank from Anna Bingemer, in which she stated that there had been an error in regard to her name, and she confirmed the statement of August Braun as to who were the heirs of Fritz Braun, giving their addresses and ages. In both letters the writers stated that they did not know Mary Cronk. Further correspondence was had between the bank officers and some of the alleged heirs of the decedent residing in Germany.

The above mentioned letters from the alleged heirs of the decedent were written in German and at the instance of the administrator were translated into English by Robert G. Clostermann, the German consul in Portland. These letters and the English translations thereof were introduced in evidence and made a part of the record.

After being advised by the administrator that the only possible heirs of the decedent were citizens and residents of Germany, the German consul in Portland communicated with the supposed heirs in Germany and procured from August Braun what is denominated a declaration in proof of heirship, which document appears to have been properly sworn to before a judge of a court of record and duly authenticated by a judge of a higher court. It is further given authenticity by the certificate of the United States consul at Frankfort. This declaration of August Braun sets forth the names of the surviving heirs of the decedent, in accordance with the statements contained in the letters of August Braun and his si...