Nersisian's Estate, In re

Decision Date27 November 1957
Citation155 Cal.App.2d 561,318 P.2d 168
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn the Matter of the ESTATE of Mike M. NERSISIAN, Deceased. Karapet NERSISIAN, David Nersisian and Napoleon Nersisian, Petitioners and Appellants, v. Leo KOLIGAN, Contestant and Respondent, K. A. Sarafian, Armenian General Benevolent Union, a corporation, and Irene Meketarian, Respondents. David NERSISIAN, Karapet Nersisian and Napoleon Nersisian, Petitioners, v. The SUPERIOR COURT In and For the COUNTY OF LOS ANGELES, State of California, Respondent. Civ. 22300, 22234.

Margolis, McTernan & Branton, Los Angeles, for appellants.

Joseph Scott, Charles Murstein, Los Angeles, James C. Janjigian, Fresno, for respondents (Executors of Estate of Mike Nersisian, and Armenian General Benevolent Union).

DRAPEAU, Justice pro tem.

Mike M. Nersisian was born in Armenia, now one of the soviet states. He came to America and accumulated property worth approximately $175,000. He died in 1952, a resident of Los Angeles county, California, leaving a last will and testament.

The will directed that his estate go to Armenian General Benevolent Union, as trustee, with directions as follows:

1. To distribute $10,000 to his sister, Margaret Agopian, of Muslugi, Armenia, U. S. S. R., or if she predeceased him to her two sons, share alike.

2. To distribute to his nephew, Bobken Nersisian, of Kellaki, Armenia, U. S. S. R., $500.

3. To use $10,000 to establish a general hospital to bear his name at the city of Kirikh, Armenia, U. S. S. R., the city of his birth.

4. To distribute the remainder of his estate to his brothers Garabed Nersisian and David Nersisian and to his nephew, Napoleon Nersisian, share alike.

It is stated in the will that the brothers reside at Tiflis, Armenia, and the nephew at Vagarshabad, near Erivan, Armenia, U. S. S. R.

The will further provides that in the event it is not legally possible to transmit the property to the soviet heirs, 'I do hereby direct that all of my estate shall be distributed to the said Armenian General Benevolent Union, a corporation, for use by it within the scope of its charitable and benevolent corporate purposes.'

The will was admitted to probate in 1953. The order admitting the will to probate states that defaults of all of the legatees named as residing in the soviet union were entered.

In 1954, the executors filed their second annual account and petition for partial distribution. In the decree of partial distribution that followed it is stated that at the time of the making of the will and at all times since, all of the legatees were and are aliens; and that 'they and each of them now reside, and have at all times during the lifetime of each of them, prior to, and at the life of making said will, and ever since the making of said will by deceased on July 29, 1950, and thereafter, have each resided within the Socialist Soviet Republic of Armenia only, none of them ever having left Armenia nor ceased to reside there. * * *'

The decree then finds that no reciprocity exists between residents of the soviet union or the republic of Armenia and the state of California; that the soviet heirs thus are not qualified to take under the will; and that the Armenian General Benevolent Union should receive the bulk of the estate in accordance with the prayer of the petition for partial distribution.

Garabed, David, and Napoleon Nersisian, legatees and heirs named in the will, appeal from the order of the probate court denying their motion to vacate and set aside the decree of partial distribution.

Grounds of appeal are:

1. The probate court was without jurisdiction to make the decree of partial distribution, because valid notice of the proceedings leading up to the entry of that decree had not been given as required by law.

2. Since the defect in the jurisdiction of the probate court appears on the face of the judgment roll, it was error for the court to deny appellants' motion to vacate its prior decree.

3. The probate court having acted without jurisdiction and having refused to recognize this, appellants are entitled to relief either by appeal or by writ of certiorari.

The facts supporting these grounds of appeal may be epitomized as follows:

The will stated that testator's brothers lived in Tiflis, Armenia.

Copies of the petition for probate of the will were mailed to the brothers at that address, in an attempt to comply with section 328 of the Probate Code. Pertinent parts of that section provide that if heirs are not personally served copies of the notice of hearing of a petition to admit a will to probate, the notice must be mailed 'postage prepaid, from a post office within this State, addressed to them at their respective places of residence, if known to the petitioner * * *.'

Tiflis is the capital city of another soviet state, the republic of Georgia. Search of maps and other sources of geographical information shows that there is no 'Tiflis' in the Russian republic of Armenia.

All of the parties to this appeal have argued from the leading case of Farmers etc. Nat. Bank v. Superior Court, 25 Cal.2d 842, at page 846, 155 P.2d 823, at page 825, in which our Supreme Court says: '* * * an order admitting a will to probate which includes the names of known heirs who have not been notified of the hearing is void upon its face, and the probate court, at least up to the time of closing the estate, has power to set it aside.'

And (25 Cal.2d at page 845, 155 P.2d at page 825), 'Courts should be particularly alert to require compliance with statutory provisions relating to constructive notice, for a departure therefrom constitutes a denial of due process.'

But in that case the Supreme Court holds that this jurisdictional defect can be cured by the general appearance of heirs through their attorneys.

So we come to what we think is the controlling question in this case: Did the two brothers appear in this case, by their attorneys?

Garabed's appearances are as follows:

August 24, 1954, filed request for special notice.

October 6, 1954, filed notice of appeal from an order settling second annual account, and for preliminary distribution.

December 10, 1954, filed application to vacate decree, settling second annual account and for preliminary distribution, made under section 473 of the Code of Civil Procedure.

January 13, 1955, application to vacate said decree; and the later notice of appeal from order denying same.

David's appearances are as follows:

November 3, 1954, filed notice of appeal from the order settling second annual account and for preliminary distribution.

January 13, 1955, filed affidavit in support of Garabed's application to vacate decree settling second annual account and for preliminary distribution.

While there might be some debate as to the sufficiency of these appearances, especially as to David, there is a document in the file which we think settles the argument as to whether or not there was sufficient appearance to cure the defect in the service of notice of the petition to probate the will.

This is from page 9 of the augmented record on appeal, and it is as follows:

'(Title of Court and Cause)

'Abandonment of appeal by appellants

'To the Clerk of the above entitled Court:

'You are hereby notified that the appeal from the judgment of the Superior Court of the State of California in and for the County of Los Angeles, in the above entitled cause, for which notices of appeal have heretofore been filed with said Clerk of the Superior Court, are hereby abandoned by appellants Karapet Nersisian, also known as Garabed Nersisian, Margaret Agapian, Tavid Nersisian, Napoleon Nersisian, and the ...

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4 cases
  • McManus' Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • 25 Marzo 1963
    ...not specified in Probate Code, section 1240. (Estate of Schechtman (1955), 45 Cal.2d 50, 54, 286 P.2d 345; Estate of Nersisian (1957), 155 Cal.App.2d 561, 567, 318 P.2d 168, Estate of Noonan (1952), 113 Cal.App.2d 899, 900, 249 P.2d In any event, even if it be assumed that an order removing......
  • Poder's Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • 14 Julio 1969
    ...such a waiver (Farmers etc. Nat. Bank v. Superior Court, Supra, 25 Cal.2d 842, 155 P.2d 823 (section 328); Estate of Nersisian (1957) 155 Cal.App.2d 561, 318 P.2d 168 (same); see also Lacey v. Bertone (1949) 33 Cal.2d 649, 203 P.2d 755; 1 Witkin, California Procedure (1954) Jurisdiction, § ......
  • Dicker v. Bisno
    • United States
    • California Court of Appeals Court of Appeals
    • 27 Noviembre 1957
    ... ...         The plaintiff Dicker is an attorney-at-law. For many years he represented Alexander Bisno in connection with Bisno's real estate transactions. Dicker was on a monthly retainer basis and was paid added amounts when extraordinary services were required. The retainer agreement ... ...
  • Mohr's Estate, In re
    • United States
    • California Court of Appeals Court of Appeals
    • 24 Octubre 1962
    ...(1959) 175 Cal.App.2d 803, 805, 1 Cal.Rptr. 46 (order denying motion to vacate order appointing administrator); Estate of Nersisian (1957) 155 Cal.App.2d 561, 567, 318 P.2d 168 (order denying motion to vacate and set aside decree of partial distribution); Estate of Rouse (1957) 149 Cal.App.......

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