Ronkendorf's Estate, In re

• Citation: 160 Cal.App.2d 145,324 P.2d 941
• Court: California Court of Appeals
• Decision Date: 06 May 1958
• Parties: In the Matter of the ESTATE of Henry Peter RONKENDORF, Deceased. Henry A. GOTTSCHE, Appellant, v. ATTORNEY GENERAL OF The UNITED STATES of America and Sue H. Cloudsley, Special Administratrix, Respondents. Civ. 9329.

Page 941

324 P.2d 941

160 Cal.App.2d 145

In the Matter of the ESTATE of Henry Peter RONKENDORF, Deceased.

Henry A. GOTTSCHE, Appellant, v. ATTORNEY GENERAL OF The UNITED STATES of America and Sue H. Cloudsley, Special Administratrix, Respondents.

Civ. 9329.

District Court of Appeal, Third District, California.

May 6, 1958.

Rehearing Denied June 2, 1958.

Hearing Denied July 2, 1958.

Manfred M. Warren, Oakland, Bernard B. Glickfeld, Howard C. Ellis, San Francisco, for appellant.

Lloyd H. Burke, U. S. Atty., San Francisco, for respondent U. S. .A.

Warmke & Woodward, Stockton, for respondent Cloudsley.

SCHOTTKY, Justice.

This is an appeal from a decree determining that the Attorney General of the United States was entitled to succeed to the real property of the Estate of Henry Peter Ronkendorf and denying the claim of Henry A. Gottsche.

Henry Peter Ronkendorf, a citizen of the United States, died intestate on May 6, 1943. He was unmarried and without issue. At the time of his death he was the owner of certain real property in the County of San Joaquin. In 1947, the administratrix of the estate informed the Attorney General that the closest living relatives of the decedent were two first cousins who lived in Germany. Thereafter, in accordance with the provisions of the Trading With the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq., by Vesting Order No. 10174 dated November 17, 1947, the interest of the German cousins in the estate became vested in the Attorney General. Subsequently, as a result of an overseas investigation another first cousin was discovered and his interest was vested by Vesting Order No. 14654 dated May 15, 1950. Thereafter, upon the administratrix' unopposed petition for distribution which set forth that the German nationals mentioned above were the heirs of the decedent and that their interest had been vested in the Attorney General, the superior court, on October 16, 1951, entered a decree of distribution in which it ordered the administratrix to distribute the estate to the Attorney General.

In March, 1952, Henry A. Gottsche, appellant herein, filed a motion to set aside the decree of distribution, and he petitioned for a decree determining to whom the estate should be distributed. Henry Gottsche is an American citizen and is a son of one of the first cousins of the decedent. On June 4, 1952, the court set aside the decree of distribution.

Thereafter, and prior to the trial on the merits of Henry Gottsche's claim, the Attorney General discovered other first cousins and a maternal aunt of the decedent, Anna Margaretha Holst. All were German nationals residing in Germany. The Attorney General also discovered that Anna Margaretha Holst had died in April, 1948, and had been survived by her husband, Henrich Amandus Holst. Upon discovering these facts, Vesting Order No. 14654 was amended on January 18, 1954, and vested the interest of all successors to Anna Margaretha Holst in the Attorney General.

The trial court found that Anna Margaretha Holst was the decedent's closest living blood relative; that she died in 1948 and was a citizen and resident of Germany at the time of her death; that her heirs, including her husband, were citizens and residents of Germany at the time of her death and were such when their interest was vested in the Attorney General on January 18, 1954. The court also found that the war with Germany was terminated as of October 19, 1951, by a proclamation of the President of the United States, No. 2950, issued pursuant to a joint resolution of Congress, Oct. 19, 1951, which provided that notwithstanding the resolution, any property or interest which prior to January 1, 1947, was subject to vesting under the provisions of the Trading With the Enemy Act or which had theretofore been vested should be subject to the provisions of that Act as if the resolution had not been adopted, 50 U.S.C.A.Appendix, p. xx; that Article IV of the Treaty of Friendship, Commerce and Consular Rights with Germany (44 Stat. 2132, 2135) was in full force and effect at all times; that at the time of the decedent's death and until her death Anna Margaretha Holst was an enemy of the United States within the meaning of the Trading With the Enemy Act; that at the time of Anna Margaretha Holst's death and continuously thereafter her heirs and next of kin were enemies of the United States within the meaning of the Act; that by virtue of the proviso of House Joint Resolution 289 the heirs of Anna Margaretha Holst, with respect to the real property in San Joaquin County, were enemies of the United States within the meaning of the Act; that the real property which decedent owned was subject to seizure after January 1, 1947, by virtue of the proviso; that it was subject to vesting in January, 1954. The court concluded from the aforementioned facts that the provisions of section 259 of the Probate Code did not deprive Anna Margaretha Holst or her heirs of the right to inherit the property; that by virtue of Article IV of the treaty, Anna Margaretha Holst acquired the title to the real property of the decedent subject to the provisions of the article of the Treaty requiring her to sell it within the term of the treaty (three years); that by the provisions of the article the term could be reasonably prolonged if necessary; that neither Anna Margaretha Holst or her heirs had a reasonable time to sell the property; that at the time of the amended vesting order in January, 1954, the Attorney General had the authority to exercise his vesting functions; and that by such vesting order he acquired title to the real property in question and that the Attorney General was entitled to distribution of the real property.

The basic questions involved in this appeal require an interpretation of Article IV of the Treaty of Friendship, Commerce and Consular Rights with Germany. Article IV reads as follows:

'Where, on the death of any person holding real or other immovable property or interests therein within the territories of One High Contracting Party, such property or interests therein would, by the laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or non-resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than those which may be imposed in like cases upon the nationals of the country from which such proceeds by may be drawn.'

The rights secured are in terms a a right to sell within a specified time plus a right to withdraw the proceeds and an exemption from discriminatory taxation. Though they are not expressed in terms of ownership or the right to inherit, that is their import and meaniang. Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633, 170 A.L.R. 953.

Appellant, Henry A. Gottsche, contends that the Attorney General has not made out a case for the passage of title from the decedent to Anna Margaretha Holst. Appellant's argument is that Anna Holst received only a qualified interest in the property and if the condition failed the remainder which was vested in appellant drew the full title to it. Appellant further argues that in order for Anna Margaretha Holst to inherit under Probate Code, section 259 (in the absence of testamentary disposition), it was necessary to prove, which allegedly was not done, the reciprocal rights of inheritance. Appellant contends that even if this was proved, then Anna Margaretha Holst had more than a reasonable time to sell, and if she did not and her interest devolved to her heirs they had more than a reasonable time to sell and therefore the defeasible fee failed before the Attorney General acquired any interest in 1954.

Respondents in reply argue: 'The State of California does not restrict alien ownership but merely inheritance (Section 259, Probate Code). The limitation on the right to inherit real property, was held by the Supreme Court to have to yield to Article IV (Clark v. Allen, 331 U.S. 503 [67 S.Ct. 1431, 91 L.Ed. 1633]). Thus, Anna Holst acquired title to her inheritance. However, as she was not prohibited under California law from continuing to own the property, she was not required to sell it. Accordingly, she acquired title to the property in fee simple, which title passed to her heirs.'

There was no proof that at the time of Ronkendorf's death reciprocal rights existed, but even if they did not exist the heirs of Ronkendorf would have the rights set forth in Article IV of the treaty.

Respondents argue further that even if Anna Holst and her heirs were required under Article IV to liquidate their inheritance, the outbreak of the war with Germany abrogated this requirement. This view is supported by a statement in Clark v. Allen, supra [331 U.S. 503, 67 S.Ct. 1436)], which reads: 'We assume that these provisions [prohibiting commercial transactions with German nationals] abrogate the parts of Article IV of the treaty dealing with the liquidation of the inheritance and the withdrawal of the proceeds, even though the Act provides that the prohibited activities and transactions may be licensed.'

Respondents' final contention is that even assuming liquidation was required, the trial court was justified in concluding that under the circumstances of this case the alien heirs did not have an opportunity to sell within the required period. This was the ground upon which the trial court based its decision. We believe that the memorandum opinion of the trial court ably and correctly states the law and the facts, and we adopt the following portion thereof as part of the opinion of this court:

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