Millers' Estate, In re

• Decision Date: 11 June 1968
• Docket Number: No. 52930,52930
• Parties: In the Matter of the ESTATE of Ida MILLERS, Deceased.
• Court: Iowa Supreme Court

Page 441

159 N.W.2d 441

In the Matter of the ESTATE of Ida MILLERS, Deceased.

No. 52930.

Supreme Court of Iowa.

June 11, 1968.

F. A. Royal, Des Moines, for appellant, Eva Tambek (Sepp).

John Paul Jones, Des Moines, for appellee, Andris Millers.

MOORE, Justice.

Ida Millers, a widowed alien, resident of Des Moines and former resident and citizen of Estonia, died testate February 2, 1965. She left surviving as her sole lineal descendant Andris Millers, her son. Andris, also an alien, had been sharing an apartment with his mother in Des Moines since 1961.

By her will, admitted to probate March 18, 1965 in Polk County, Ida directed that all her property, both real and personal, descend to her sister, Armilde Tambek of Nomme, Estonia, or in event she should predecease testatrix, to Armilde's daughter Eva Tambek-Sepp, who is now married and living in Estonia. Armilde Tambek died March 25, 1958.

Andris' attorney by letters dated February 25, and April 2, 1965 informed the surviving niece, Eva, of her aunt's death and the provisions of the will. She was advised it was questionable under Iowa law whether she was entitled to the personal property in the estate. As we shall point out infra the question existed because of the provisions of our Code section 567.8. The second letter did, however, express a willingness to cooperate in aiding her acquisition of some real property in Latvia ostensibly owned by decedent. Thereafter Eva employed New York attorneys who were immediately assured by Andris' attorney of his willingness to cooperate in presenting construction of the will to the court. This spirit of cooperation was not displayed by the New York attorneys. Their dilatory tactics resulted in much delay in bringing the question to issue.

Based on the executor's final report, filed October 15, 1965 the fiscal affairs of the estate were concluded without objection except for determination of entitlement to the residuum and possible inheritance tax liability. On October 29, 1965 Andris filed application for construction of the will asserting his claim to the residuum and a temporary executor was appointed. After much delay caused by the New York attorneys, including withdrawal of local counsel and employment of Mr. Royal, Eva's new Des Moines attorney, construction of the will was finally submitted to the trial court in January, 1967.

The trial court on April 13, 1967 filed his findings of fact, conclusions of law and a decree and judgment. The court awarded the personal property in the estate to Andris. This holding was based on two factors, (1) the nonresident alien Eva failed to carry the burden of proof required of her under Code section 567.8 and (2) entry of default against Eva nunc pro tunc from December 16, 1966.

Our review is de novo. Rule 334, Rules of Civil Procedure. We are unable to reach the same conclusion on either ground as found by the trial court and after a review of the entire record find a reversal must be ordered.

I. Section 567.8, Code, 1962, 1966 as pertinent here provides: '(1) The right of aliens not residing within the United States or its territories * * * to take personal property in this state by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take personal property upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are residents.

'(2) The burden shall be upon such nonresident aliens to establish the fact of existence of the reciprocal right set forth in subsection 1.'

The trial court placed considerable emphasis on the words 'reciprocal right', expressly holding such a 'right' is incapable of establishment in the absence of a formal treaty agreement between the respective countries encompassing reciprocal inheritance rights. The record shows without dispute no such treaty existed.

The obvious result of the trial court's holding would be the absolute frustration of the testamentary intent of an Iowa resident desirous of devising property to residents of a country with which the United States had not entered a written treaty agreement. Such result would necessarily obtain regardless of incontrovertible evidence conclusively establishing a presently existing course of conduct tantamount to reciprocity of inheritance rights between two countries. Although we agree with appellee treaty provisions specifically governing inheritance rights would be highly persuasive, if not conclusive, evidence of a 'reciprocal right' as contemplated under section 567.8 we do not believe the legislature intended to so restrict the capacity of our citizens to dispose of their property by testamentary devise.

The primary rule in construing a statute is to ascertain and give effect to the intention of the legislature and we are required to interpret the language fairly and sensibly in accordance with the plain meaning of the words used by the legislature. In re Estate of Klug, 251 Iowa 1128, 1131, 1132, 104 N.W.2d 600, 602, 603, and citations.

82 C.J.S. Statutes § 321, states: 'The fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention or purpose of the legislature as expressed in the statute.' Similar statements are made in 50 Am.Jur., Statutes, section 223.

Section 4.2 with reference to our Code provides: 'Its provisions and all proceedings under it shall be liberally construed with a view to promote its objects and assist the parties in obtaining justice.'

Section 567.8 does not refer to treaties. We can nowhere discern in its wording any mandate requiring us to hold reciprocal rights include only those established by treaty. It is readily apparent such an interpretation to a large extent would render meaningless the statute's purpose which is obviously to allow a nonresident alien to inherit when both the law of his country, and the practice under that law, permit American citizens to inherit under the same circumstances as a citizen of that country.

Appellee's contention proof of a treaty is necessary under section 567.8 presents a question of first impression before this court. It has, however, been decided contrary to appellee's position by the California court. California has a statute (section 259) identical to section 567.8. In regard thereto the court in In re Knutzen's Estate, 31 Cal.2d 573, 191 P.2d 747, 751, 752, says: 'The statute, however, does not refer to treaties, and there is nothing in its wording which requires the construction that 'reciprocal rights' include only those established by treaty. Such a construction would defeat the obvious purpose of the statute which was to permit a nonresident alien to inherit when the laws of his country would permit an American citizen to inherit under the same circumstances. Evidence of the foreign domestic law is therefore admissible to prove the existence of reciprocal inheritance rights. Cf. Estate of Blak, 65 Cal.App.2d 232, 236, 150 P.2d 567; In re Nielsen's Estate (118 Mont. 304), 165 P.2d 792.' See also In re Bevilacqua's Estate, 31 Cal.2d 580, 191 P.2d 752; In re Estate of Larkin, 65 Cal.2d 60, 52 Cal.Rptr. 441, 416 P.2d 473; In re Estate of Chichernea, 66 Cal.2d 83, 57 Cal.Rptr. 135, 424 P.2d 687, in which nonresident aliens were allowed to inherit without proof of a treaty. We believe the holding of the California court is sound.

II. We have carefully examine the record and exhibits certified to us and conclude appellant did meet the burden of proof imposed upon her by section 567.8(2).

Appellant's case depends largely upon the answers to written interrogatories and cross-interrogatories propounded to Professor Harold J. Berman of the Harvard Law School. They were taken in evidence by stipulation of the parties. Professor Berman is a nationally recognized authority on Russian law. He has been in the Soviet Union seven times since 1955, including a year spent there doing research in Soviet law. He has visited and argued before Russian courts. He has testified as an expert on Russian law in many courts in the United States. In In re Estate of Larkin, supra, 52 Cal.Rptr. 441, 416 P.2d 473, Professor Berman's testimony is to the same effect as his answers to interrogatories here. In Larkin under an identical statute as our Code section 567.8 the California court permitted a citizen and resident of Russia to take under a will in that state. In a footnote at page 442 of 52 Cal.Rptr., at page 477 of 416 P.2d, the California Supreme Court says: 'Professor Berman possesses the highest qualifications to testify in regard to the law of the Soviet Union. * * * Professor Berman stated that during his visits in the Soviet Union he had taken particular care to inform himself of the Soviet law and practice relating to inheritance by United States citizens because of the frequency with which he has been called upon to give an opinion on this matter in the United States.'

In the case at bar Professor Berman's qualifications or competency are not challenged. None of his testimony is contradicted.

His testimony reveals he has studied and is familiar with the current Civil Codes of the Estonian Soviet Socialist Republic, the Union of Soviet Socialist Republics (U.S.S.R.), and the Russian Soviet Federated Socialist Republic (R.S.F.S.R.). The R.S.F.S.R. is the largest of the sixteen Union Republics which comprise the U.S.S.R. The Fundamental Principles of Civil Legislation of the U.S.S.R. (referred to as the Fundamental Principles) which were adopted in 1961 and somewhat modified in 1964 govern all Civil Codes of the various republics including Estonia.

Article 122 of the Fundamental Principles to which the Estonian Civil Code is subject provides: Capacity of foreign citizens to have civil rights and obligations: Foreign citizens (that is citizens...