Krachler's Estate, In re
| Decision Date | 12 November 1953 |
| Citation | 263 P.2d 769,199 Or. 448 |
| Parties | In re KRACHLER'S ESTATE. STATE LAND BOARD OF OREGON v. BROWNELL et al. |
| Court | Oregon Supreme Court |
Peter A. Schwabe, Portland, argued the cause for appellant, intervener. On the brief were Haas & Schwabe, Portland.
Catherine Zorn, Asst. Atty. Gen., Salem, argued the cause for State Land Board of Oregon, petitioner and appellant. With her on the brief were George Neuner, former Atty. Gen., McMinnville, and Cecil H. Quesseth, former Asst. Atty. Gen., Salem.
Henry L. Hess, U. S. Atty. for District of Oregon, Portland, and Harold I. Baynton, Valentine C. Hammack, James D. Hill, George B. Searls and John F. Cushman, Asst. Attys. Gen., on the brief for Attorney General of the United States.
The question presented for decision is whether, under the provisions of O.C.L.A. § 61-107, a resident and citizen of Germany can take under the will of a naturalized American citizen who died on 8 December 1943 in Portland, Oregon. According to the statute, the right of the German claimant to take under the will is dependent upon the existence on the date mentioned of a reciprocal right upon the part of citizens of the United States to take from estates of persons dying in Germany. The parties join issue on the question of the existence of such reciprocal right.
In a proceeding, No. 51276, brought in the Probate Department of the Circuit Court for Multnomah County, the last will and testament of naturalized citizen John Krachler, deceased, was admitted to probate and letters testamentary were issued to John J. Beckman, who was named in the will as executor and trustee for Marie Unsold, a resident and citizen of Germany, the legatee under the will. The executor filed a supplemental final account. He thereafter died and the Portland Trust and Saving Bank of Portland, Oregon, was appointed administrator de bonis non and trustee under the will of the deceased. On 17 February 1950, the State of Oregon, by the State Land Board, filed in said case, No. 51276, in the Probate Department of the Circuit Court, a petition, seeking a decree that John Krachler died without legal heirs capable of inheriting the proceeds of the estate, and praying for an order that said proceeds be delivered to the State Land Board as an escheat. The Attorney General of the United States filed in the same proceeding an answer to the petition of the State Land Board, alleging that the German beneficiaries under the will were capable of inheriting under the law of Oregon, and that, as successor to the Alien Property Custodian, he has become the owner of all rights of the German beneficiaries under the will, this, by virtue of a Vesting Order No. 4887, issued by the Alien Property Custodian. He also filed a petition in said probate matter, seeking distribution to him of the net proceeds of the estate. Thereafter, with leave of court, George Hagmaier filed a petition in intervention in the probate proceedings, claiming the estate as sole heir of the testator, and contesting the claims of the State of Oregon, the German heirs, and the Attorney General of the United States as successor to the claims of the German heirs. In a stipulation the parties recited that 'the outcome of the within hearing of the petition of the State of Oregon will determine to whom the residue of said estate will be paid.'
The cause was tried as a suit in equity in the Probate Department, and as a part of the proceedings in said case, No. 51276. After trial of the issue, findings of fact and conclusions of law were entered and a decree was rendered dismissing the petition of the State of Oregon and the petition of the intervener, and granting the petition of the Attorney General of the United States for distribution to him of the assets of the estate. The State Land Board and Hagmaier appeal.
Marie Unsold was living at the time of the trial, and so far as the record shows, is still living. For convenience, we shall refer to Marie Unsold as if she were the sole beneficiary named in the will.
The right of the Attorney General as successor in interest to the Alien Property Custodian depends exclusively on the right of Marie Unsold to inherit, for the Vesting Order seizes only such right as she had. The rights of the respective claimants must be determined as of 8 December 1943, the date of the death of John Krachler.
The position of the intervener Hagmaier is in accord with that of the State of Oregon. Both claim that the German legatee, Marie Unsold, is not qualified to inherit under the provisions of O.C.L.A. § 61-107, and that therefore the Attorney General acquired no right under the Vesting Order. Hagmaier disagrees with the state only in this: He claims that there should be no escheat to the state since he is a resident and citizen of the United States and is next of kin of the deceased, and entitled to take since the named legatee is not. Whether or not Hagmaier is an American citizen and next of kin is an issue as yet undetermined, and one which the trial court will be required to hear and determine on evidence if the decision of this court is adverse to the claim of Marie Unsold and the Attorney General. The decision of this case depends upon the construction and application of O.C.L.A. § 61-107, which reads as follows:
Section 61-107, O.C.L.A., is a law of succession, which as to personal property, was within the power of the state to enact. Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633. As said by the Supreme Court of California in a case under a somewhat similar statute:
'* * * Hence the proper construction is that sections 259 et seq. are laws of succession, that they constitute limitations on the power of aliens to inherit and that nonresident aliens are made ineligible to inherit, and acquire no rights in the estate in the absence of reciprocal rights of American citizens to inherit property in the country in which such aliens are resident.' In re Knutzen's Estate, 31 Cal.2d 573, 191 P.2d 747, 751.
We must first determine what was the right of a nonresident alien to take personal property by descent or inheritance prior to the enactment of O.C.L.A. § 61-107, and what limitations upon that right have been imposed by that statute. We must therefore determine what is meant by 'the existence of a reciprocal right upon the part of citizens of the United States to take personal property or the proceeds thereof in like manner within the countries of which said aliens are inhabitants or citizens'. (Italics ours.) When used in relation to claims to property, the word 'right' means a claim or title to or an interest in anything that is enforceable by law. Bailey v. Miller, 45 Ind.App. 475, 91 N.E. 24; Hathorn v. Robinson, 98 Me. 334, 56 A. 1057. As said in the Restatement of Conflict of Laws, a right is a legally enforceable claim. Restatement, Conflicts, § 42b.
There was a marked distinction at common law between the rights of aliens to acquire lands and their rights to acquire personal property. Fergus v. Tomlinson, 126 Kan. 427, 268 P. 849. It is generally recognized that in the absence of statute to the contrary, nonresident aliens may inherit personal property upon the same terms as resident American citizens.
(Citing cases.) 2 C.J. 1069, Aliens, § 34.
'An alien is fully competent to take and hold personal property by bequest * * *.' (Citing cases.) 2 C.J. 1069, Aliens, § 35.
To the same effect see 3 C.J.S. 587, Aliens, §§ 28, 29; Greenheld v. Morrison, 21 Iowa 538; Crosgrove v. Crosgrove, 69 Conn. 416, 38 A. 219; Braga v. Braga, 314 Mass. 666, 51 N.E.2d 429; Southwestern Surety Ins. Co. v. Vickstrom, Tex.Civ.App., 1918, 203 S.W. 389; 57 Am.Jur. 139, Wills, § 153; 68 C.J. 504, Wills, § 123.
Under the able decision of this court in Namba v. McCourt and Neuner, 185 Or. 579, 204 P.2d 569, it appears that aliens, including those ineligible to citizenship, may now inherit Oregon lands. If this be true, it would follow a fortiori that in the absence of statute to the contrary, aliens may inherit personal property. One comment should be made for the sake of clarity concerning the case of Namba v. McCourt and Neuner, supra. Recourse to the original opinion of this court, on file in the officer of our clerk, discloses an error in the text of the next to the last paragraph of the opinion as it appears in 185 Or. at page 614. A portion of that paragraph reads: '* * * our Alien Land Law (§ 61-101 to and including § 61-112, O.C.L.A.) must be deemed violative' of the equal protection clause of the Constitution. The correct text of the decision appears in 204 P.2d 569 at page 583, where the parallel language reads as follows: '* * * our Alien Land Law,...
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