Kasendorf's Estate, In re
| Decision Date | 22 June 1960 |
| Citation | 222 Or. 463,353 P.2d 531 |
| Parties | In the Matter of the ESTATE of August KASENDORF, deceased. Damara Tiia Lisette MULLART, Appellant, v. STATE of Oregon, Acting By and Through the STATE LAND BOARD, Respondent. |
| Court | Oregon Supreme Court |
Russell R. Niehaus, Portland, for appellant. On the briefs were Wheelock, Richardson & Niehaus, Portland.
Catherine Zorn, Asst. Atty. Gen., for respondent. With her on the brief was Robert Y. Thornton, Atty. Gen.
Before McALLISTER, C. J., and WARNER, SLOAN, O'CONNELL and MILLARD, JJ.
August Kasendorf died testate in Multnomah county, November 21, 1943, leaving his entire estate, consisting of real and personal property, to his brother and four sisters, who were residents and nationals of Estonia. No contact having been established with these legatees, proceedings were instituted in 1951 for the determination of heirship pursuant to §§ 19-1301, 19-1306, OCLA, ch. 184, Oregon Laws 1945 (now ORS 117.510, 117.560).
The state claims that at the time of testator's death none of Kasendorf's legatees, nor his or their heirs, resided in the United States or its territories and that by reason thereof his estate escheated to the state of Oregon pursuant to § 21-101, OCLA, and § 61-107, 1 OCLA (now, respectively, ORS 120.010-120.030 and ORS 111.070).
A petition or answer was also filed at a later date by the administrator of the Anna Mikli estate, seeking a determination that Anna, on the date of August Kasendorf's death, was his sole and only surviving beneficiary. The appellant, Damara Tiia Lisette Mullart, had previously laid claim to the entire estate as the only surviving kin of the testator, Kansendorf, and as the only child of her deceased mother, Anna Mikli, a sister and a named legatee of the decedent. We will hereinafter refer to the claimant as Damara and her mother as Anna.
From a decree of escheat in favor of the state, the claimant, Damara, appeals.
The pertinent provisions of August Kasendorf's will read:
'Fourth: In the event my said above named brother or either one of my said above named sisters should die before I do and leave no lineal descendants, then and in that event, his or her or their shares shall be divided equally between my living brother and sisters, as the case may be.'
The questions presented for our determination are: Who were the legatees, if any, that survived the testator, and if they were residents of Estonia on November 21, 1943, did the laws of that country as of that date meet the requirements of § 61-107, OCLA, supra, so as to entitle such Estonian legatees, or their survivors, to receive a distributive share of August Kasendorf's estate?
The conclusions and decree of the circuit court were based upon the following findings of fact:
'(1) That Damara Tiia Lisette Mullart has failed to prove that she is entitled to inherit the property of the estate of August Kasendorf;
'(2) That the required rights of United States citizens under § 16-107, [61-107], O.C.L.A., have not been proven to exist as to Estonia at the time of the death of said August Kasendorf on November 21, 1943;
'(3) That it is not necessary to determine whether or not the American-Estonian Treaty of 1925 governs the disposition of the real property owned by August Kasendorf at the time of his death because no one has established his right to inherit such property;
'(4) That the beneficiaries named in the Will of August Kasendorf have not been located or heard from since before his death on November 21, 1943, and therefore are presumed to be dead; and
'(5) Finally, that the property, both real and personal, of the estate of August Kasendorf, deceased, escheats of the State of Oregon for the benefit of the Common School Fund.'
We cannot concur with the lower court's findings numbered (2), (3) and (5), but find ourselves in accord with finding numbered (4). As to finding numbered (1), we cannot agree that if we reverse the circuit court, we must find that Damara is entitled to claim her uncle's estate in this proceeding. The reasons for these conclusions will shortly follow.
The testimony of claimant's witnesses, all of whom are former nationals of Estonia, and the majority of whom are refugees, must be read with some consideration and understanding of the catastrophic events which occurred in that small republic during the years 1941 to 1943 and resulted in its complete subjugation to the Soviet authority.
Estonia is one of the three Baltic states which suffered the same tragic experiences of that period. It is a relatively small area, 18,357 square miles, slightly less than the combined areas of Lake and Harney counties of our own state, and with a population in 1940 of only 1,126,415. 2 The Russians, in June, 1941, without the formalities of war or warning, moved in and overwhelmed it with its military might. At the same time the Soviet hastily and cruelly deported about 60,000 of its people to Russia and Siberia and, in addition, exterminated many of its elderly residents. This policy of destroying or decimating families and rendering normal economic life chaotic continued long afterward.
As many persons as could escape the vigilance of the Soviet military and secret police, sought refuge in displacement camps of Sweden, some in Germany and possibly in other countries, until they could eventually resettle themselves in lands of the free world.
Not a few found their way to the United States. The record here indicates that many, after great hardships, were able to join colonies of their fellow countrymen in New York, Chicago and Detroit and no doubt elsewhere in this country. Those who had proceeded them here formed in these cities local organizations known as Estonian Societies, dedicated primarily to assisting new refugees in finding living quarters and employment. They also utilized its facilities as a clearing house for information concerning separated families and for reports on the whereabouts or the death of those who had suffered from Soviet brutality and reprisals.
Sometime after 1941, the Germans overran Estonia and for the time forced Soviet retirement. But the Russians attacked again in 1943 and compelled the Germans to evacuate. Ever since the Russians have remained in complete control. As a result of the ebb and flow of this tide of invasion, and particularly the expulsion of the Germans by the Russians in 1943, their warring armies by bombing raids and consequent fires, destroyed large segments of the metropolitan and suburban areas of Estonia and with it went the destruction of many public buildings and valuable records which ordinarily might be expected to supply records of vital statistics and pedigree.
These conditions account in large measure for the want of more satisfactory records concerning the Kasendorf family tree and the dependence of the claimant upon hearsay to establish relationship to the decedent, August Kasendorf.
The case for the claimant is dependent primarily on the testimony of Damara and Paul Janes in establishing the relationship of Anna and Damara to August Kasendorf and the nonexistence of any other relatives surviving the testator. It was testimony admitted without objection and to which no rebuttal was offered. It stands uncontradicted.
Damara's testimony was first presented by a deposition given in Chicago in September, 1951, and later orally at the hearing held in this matter on the twenty-ninth day of July, 1957. The oral presentation follows closely that found in the deposition. We summarize it as follows: Damara was born at Narva, Estonia, on the twenty-ninth of October, 1910. Her mother was Anna Mikli. Her knowledge concerning her mother in large measure is dependent in the first instance upon information furnished by her stepmother, Liisa Krist, who raised her to womanhood. It appears that at the time of Damara's birth and as a result of it, her mother was paralyzed. Mrs. Krist had been a friend and companion of Anna for many years. Mrs. Krist had also given birth about the same time to a baby girl who died shortly afterward. Because of this situation and the paralysis of Anna, Mrs. Mikli gave Damara to the Krists to raise. They took charge of Damara and raised her as one of their own daughters, giving her the name of Krist. It was not until Damara was about 15 years of age that she learned for the first time to her great shock and surprise that she was only a foster child and illegitimate and that she had an uncle and aunts by the name of Kasendorf living together in the county of Hageri. This knowledge was conveyed to her by Mrs. Krist, who because of the acute economic conditions then prevailing in the Krist family, was prompted to suggest to Damara that she write to her uncle and aunts for some aid. Damara had on several occasions before she was five years old been taken to the Kasendorf farm in Hageri by Mrs. Krist. She had a vague independent memory of those visits but did not know of her relationship to the Kasendorfs until revealed to her by Mrs. Krist. Among those things recalled, she has a recollection of seeing a lady walking around with crutches.
She testifies after some delay she wrote as suggested to her uncle Jaan and aunts Miina and Liisa Kasendorf and eventually received a reply to her letter for help from the aunts who said that they would help her in any was they could, but also advised that her...
To continue reading
Request your trial
-
Zschernig v. Miller, 21
... ... estate of a resident of Oregon who died there intestate in 1962. Appellants are decedent's sole heirs and they are residents of East Germany. Appellees ... ...
-
Zschernig v. Miller
...differs from those prevailing in the cases of Estate of Nepogodin, 134 Cal.App.2d 161, 285 P.2d 672 (1955), and In re Estate of Kasendorf, 222 Or. 463, 353 P.2d 531 (1960), relied upon by plaintiffs. In those cases the relevant treaties applied to the country or state as a whole. In this ca......
-
Joseph v. Utah Home Fire Ins. Co.
... ... Other dictionaries provide similar definitions. See Funk & Wagnalls Standard Dictionary (1913), cited in In re Norman's Estate, 209 Minn. 19, 295 N.W. 63, 66 (1940) ("fosterage means the care of a * * * foster child * * *--one considered as holding the relationship indicated ... ...