Stoich's Estate, In re

• Decision Date: 13 January 1960
• Citation: 220 Or. 448,349 P.2d 255
• Parties: ESTATE of Joe STOICH, Deceased. STATE of Oregon, acting by and through the State Land Board, Appellant, v. Andja KOLOVRAT, Drago Stojic, Dragica Sunjic, Neda Turk, Josip Bulgan, Jure Zivanovic, Mara Tolic and Milan Stojic, and also Branko Karadzole, Consul General of Yugoslavia at San Francisco, California, Respondents. ESTATE of Muharem ZEKICH, Deceased. STATE of Oregon, acting by and through the State Land Board, Appellant, v. Lutvo ZEKIC, Ibro Zekic, Habiba Turkovic, Dzedja Popovac, Sefko Muradbasic, Dika Muradbasic, Murta Brkic, Milka Zekic, Jasmina Zekic and Rajka Zekic, and Branko Karadzole, Consul General of Yugoslavia at San Francisco, California, Respondents.
• Court: Oregon Supreme Court

Page 255

349 P.2d 255

220 Or. 448

ESTATE of Joe STOICH, Deceased.

STATE of Oregon, acting by and through the State Land Board, Appellant, v. Andja KOLOVRAT, Drago Stojic, Dragica Sunjic, Neda Turk,

Josip Bulgan, Jure Zivanovic, Mara Tolic and Milan Stojic,

and also Branko Karadzole, Consul General of Yugoslavia at

San Francisco, California, Respondents.

ESTATE of Muharem ZEKICH, Deceased.

STATE of Oregon, acting by and through the State Land Board, Appellant, v. Lutvo ZEKIC, Ibro Zekic, Habiba Turkovic, Dzedja Popovac,

Sefko Muradbasic, Dika Muradbasic, Murta Brkic, Milka Zekic,

Jasmina Zekic and Rajka Zekic, and Branko Karadzole, Consul

General of Yugoslavia at San Francisco, California, Respondents.

Supreme Court of Oregon, Department 2.

Argued Dec. 16, 1959.

Decided Jan. 13, 1960.

Catherine Zorn, Asst. Atty. Gen., argued the cause for appellant. With her on the briefs was Robert Y. Thornton, Atty. Gen.

Peter A. Schwabe, Portland, argued the cause and filed a brief for respondents.

Before McALLISTER, C. J., and LUSK, WARNER and SLOAN, JJ.

WARNER, Justice.

We are presented with an appeal from decrees in the estates of Joe Stoich and Muharem Zekich, arising from proceedings for escheat in each estate instituted by the State Land Board, hereinafter referred to as the State.

Stoich died intestate in Multnomah county on December 6, 1953, leaving as his only heirs a sister, four nephews, and three nieces, all residents of Yugoslavia.

Zekich likewise died interstate in the same county on December 17, 1953, leaving as his only heirs two sisters, two brothers, two nephews, and three nieces, who are also residents of Yugoslavia.

All the heirs of each decedent are made parties defendant and appear therein by their attorneys in fact.

Because of the similarity of basic facts and questions of law common to both proceedings, the two matters were consolidated in the probate court for the purpose of trial and later consolidated in this court for the purpose of argument.

The position of the State is: that each decedent died without heirs or next of kin entitled to receive any part of his or her relative's estate. It premises its case upon ORS 111.070 (Oregon Laws 1951, ch. 519, § 1).

From orders denying the State's petitions for escheat and determining the right of the several defendants as alien heirs to take their respective distributive shares in the estates to which they lay claim, the State appeals.

This is the first appeal to reach this court from orders made pursuant to ORS 111.070, supra. Heretofore, all of the appeals in like matters had their origin in the earlier counterpart to the present statute, namely, § 61-107, O.C.L.A. (Oregon Laws 1937, ch. 399, § 1). ¹

ORS 111.070, the controlling statute, provides:

'(1) The right of an alien not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this state by succession or testamentary disposition, upon the same terms and conditions as inhabitants and citizens of the United States, is dependent in each case:

'(a) Upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as inhabitants and citizens of the country of which such alien is an inhabitant or citizen;

'(b) Upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign country; and

'(c) Upon proof that such foreign heirs, distributees, devisees or legatees may receive the benefit, use or control of money or property from estates of persons dying in this state without confiscation, in whole or in part, by the governments of such foreign countries.

'(2) The burden is upon such nonresident alien to establish the fact of existence of the reciprocal rights set forth in subsection (1) of this section.

'(3) If such reciprocal rights are not found to exist and if no heir, devisee or legatee other than such alien is found eligible to take such property, the property shall be disposed of as escheated property.'

Speaking generally, the principal differences between the present statute and the former one dealing with the rights of aliens to take inheritances in Oregon estates are: (1) the significant words 'in like manner' ² do not appear in ORS 111.070, supra, thereby making the reciprocal requirements of the statute read as does its California counterpart on that subject (West, Annotated California Probate Code, § 259, p. 528); (2) the present act embraces inheritances in real, as well as personal, property; and (3) adds, as an additional condition to the taking, subsection (c) of Section 1, requiring proof that foreign heirs will receive their legacies without diminution by the government of the country where they claim citizenship.

The present act, as before, imposes on the alien nonresident heir the burden of proving the existence of the conditions precedent to qualifying one to take an inheritance in this state. These concurring conditions are: (1) that a reciprocal right existed as of the date of the decedent's death on the part of American citizens to take property from estates in the foreign country in which the alien resides, upon the same terms and conditions as the inhabitants and citizens of that foreign country; (2) that American citizens have the right to receive by payment to them within the United States moneys originating from estates in the foreign country; and (3) that the heirs and legatees in the foreign country will have the use, benefit and control of money or property originating from Oregon estates without confiscation by the foreign government. ³ Failure to sustain the burden imposed upon alien heirs by the preponderance of evidence as to any one of these three items of proof of right results in defeating the claim of the alien to take under the statute. In re Estate of Krachler, 199 Or. 448, 263 P.2d 769; State Land Board v. Rogers, Or., 347 P.2d 57, 59, decided December 2, 1959.

The defendant heirs claim to have met the burden in every particular.

ORS 111.070 is, as was its predecessor, § 61-107, O.C.L.A., a law of succession, which governs the rights of nonresident aliens to take and receive property in the estate of an Oregon decedent. In re Estate of Krachler, supra (199 Or. at page 454, 263 P.2d at page 772); In re Knutzen's Estate, 31 Cal.2d 573, 191 P.2d 747, 751. The date of death controls the succession to the property and the three required rights under ORS 111.070, supra, must be shown to have so existed under the law of the country of the alien claimant as of that date. In re Estate of Krachler, supra (199 Or. at page 453, 263 P.2d at page 772); State Land Board v. Rogers, supra (347 P.2d at page 61).

The 'rights' of which we speak, as employed in the current statute, have been defined to mean an unqualified right, enforceable at law. In re Estate of Krachler, supra (199 Or. at pages 455, 457 and 502, 263 P.2d at pages 773, 793), and 'definitely ascertainable' In re Arbulich's Estate, 31 Cal.2d 86, 257 P.2d 433, 439. These definitions exclude the concept of a right which may in any sense be limited or dependent upon an act of discretion or grace upon the part of any governmental authority or agency.

We have also held that the second right, i. e., the right to receive, means delivery of the proceeds of an inheritance from a foreign estate, not in the country where the foreign decedent left property, but a delivery to an Oregon heir in the United States or its territories, originated and implemented by some one authorized to make distribution and delivery of inheritances to the decedent's Oregon heir. State Land Board v. Rogers, supra. Moreover, the second right is not reciprocal in character; that is to say, it is not dependent upon the existence of a law of the foreign country that the alien heirs and nationals of that foreign country who take from an Oregon estate must receive delivery of their Oregon legacy within the territory of that country. It is only the 'right to take' which must be reciprocal in character. State Land Board v. Rogers, supra (347 P.2d at page 60).

In determining this appeal, we find it only necessary to address ourselves to the question of the existence or nonexistence of the second right under the Yugoslavian law; that is, whether there is a certain and enforceable right vested in American citizens to receive the proceeds of a Yugoslavian inheritance in this country.

At the outset, we note that the defendants have placed much in the record concerning laws, regulations and customs prevailing in Yugoslavia at the time of the trial (April, 1957) which may have come into existence subsequent to December, 1953 (the crucial date for the determination of the rights of the Yogoslavian heirs to take the estates involved in this proceeding). It is, therefore, not always clear to us whether all of the given matter reflected by approximately 85 documents apply to things existing in December, 1953, or to matters arising thereafter. This is well exemplified with reference to the current Article 8 of the Yugoslavian Foreign Exchange Law upon which the defendants rest no small part of their argument, and to which we will later make fuller reference.

The exchange laws and regulations of a given country have been recognized or treated as conclusively determinative of an Oregon citizen's right to receive his inheritance 'within the United States or its territories.' In re Estate of Krachler, supra (199 Or. at page 478, 263 P.2d at page 772); State Land Board v. Rogers, supra (347 P.2d at page 61).

The Yugoslavian Law Regulating Foreign Payments (Foreign Exchange Law), hereinafter referred to as the Law, as it was in 1947, and being the Law of Foreign Exchange as adopted in 1945, is set out in substantial entirety in In re...