Zimmermann's Estate, In re

• Decision Date: 03 May 1955
• Court: California Court of Appeals Court of Appeals
• Parties: ESTATE of John ZIMMERMANN, Deceased. Lina De Haan et al., Petitioners, and Herbert Brownell, Jr., Attorney General of the United States, as Successor to the Alien Property Custodian, Petitioner in Intervention and Appellant, State of California, Respondent. Civ. 8423.

Page 68

283 P.2d 68

132 Cal.App.2d 702

ESTATE of John ZIMMERMANN, Deceased Lina De Haan et al., Petitioners, and Herbert Brownell, Jr., Attorney General of the United States, as Successor to the Alien Property Custodian, Petitioner in Intervention and Appellant State of California, Respondent.

Civ. 8423.

District Court of Appeal, Third District, California.

May 3, 1955.

Paul V. Myron, Deputy Director, Dept. of Justice, Washington, D. C., Lloyd H. Burke, U. S. Atty., Northern Dist. of Cal., San Francisco, Cal., Valentine C. Hammack, Sp. Asst. to the Atty. Gen., James D. Hill, George B. Searls & Irwin A. Seibel, Dept. of Justice, Washington, D. C. Mary Eschweiler, Atty., Office of Alien Property, Dept. of Justice, San Francisco, Cal., for appellant.

Edmund G. Brown, Atty. Gen., William J. Power, Deputy Atty. Gen., for respondent.

VAN DYKE, Presiding Justice.

This is an appeal by the intervening Attorney General of the United States from that portion of a judgment denying recovery of part of the property that had been distributed to the State of California out of the Estate of John Zimmermann, deceased, for want of known heirs. Intervener had entered a vesting order under the Trading with the Enemy Act, 50 U.S.C.A.Appendix, §§ 1-40, thereby claiming to have vested in himself as Alien Property Custodian all interest in the funds so distributed to the State of California that were being claimed by German citizens who were heirs of the deceased. The facts presented by the record which are without dispute are as follows: John Zimmermann, a resident of Napa, California, died therein intestate on May 19, 1946. After probate of his estate there remained for distribution the sum of $7,373.73. There were no known heirs and hence the court in probate distributed the funds to the respondent State of California by decree of distribution dated June 20, 1947. Pursuant to statute, the funds so distributed were deposited in the state treasury on January 26, 1948. On May 3, 1948, this proceeding was instituted by German heirs of John Zimmerman. They were then, and at all times material herein, enemy aliens. Herein they sought to recover their shares of the funds that had been distributed to the state. In this proceeding the trial court found, and no contention is made that the finding was wrong, that there existed between Germany and the United States the reciprocal inheritance rights required by Section 259 of the Probate Code. On April 11, 1952, the Attorney General of the United States issued a vesting order declaring that the interests of said German heirs were thereby vested in him pursuant to the provisions of the Trading with the Enemy Act. 50 U.S.C.A.Appendix, § 39. Thereafter he filed a petition in intervention herein praying that he recover as Alien Property Custodian the funds in controversy. The trial court denied the claims of the intervener. In order to state the theory under which the trial court acted it is necessary to now refer to various legislative enactments relative to the inheritance rights of aliens under our laws.

It is well settled that the state, in the exercise of its sovereign power, may provide the conditions under which aliens may inherit and, indeed, may wholly prohibit such inheritance. Gorny v. Trustees of Milwaukee, 93 F.2d 107, 115 A.L.R. 1000; Commonwealth v. Thomas, 140 Ky. 789, 131 S.W. 797. So broad is the power of the state to determine the devolution of title to the property of a person dying and leaving property within its boundaries that it may take the property itself and deny any right of anyone to succeed thereto either by will or by succession, or it may provide for transfer by will or succession by inheritance and fix the conditions of such transfer or succession. In the exercise of this plenary power the state may by general laws provide that in the absence of known heirs the property of a person dying intestate shall pass to the state and it may provide further, if it will, that under specified conditions heirs, who, had they been known would have taken, may recover property which the state has so received. As was said in Commonwealth v. Thomas, supra, 140 Ky. at page 800, 131 S.W. at page 800:

'* * * The state may in its generosity, or sense of fairness, say that it will not in such case hold the proceeds against the original claimant, if he subsequently appears, and may provide for his reimbursement. It may do less, as by shortening the time in which it will make reimbursement, or it may exact conditions. In the instance here the state has declared that, for escheated property which it dedicates to purposes of education, it will not make reimbursement. Rather, it fails to make provisions for it in such instances. It was in the competency of the state to so provide, or fail to provide as it saw fit. The policy is one of legislative discretion, and is not a condition precedent to the state's exercise of power.'

In Gorny v. Milwaukee, supra, 93 F.2d at page 109, it was said:

'* * * 'The power to escheat is a sovereign power and when the sovereign escheats he may do so absolutely or conditionally, with or without reservation of right of refund * * *. If no law authorizes a refund there can be no refund enforced. There is no common law right of refund * * *.''

Under our statute laws operative at the time of death of John Zimmermann, alien heirs situated as were these German heirs could succeed to the property of one dying intestate, and our laws so implement this right that immediately upon death of the intestate title is cast in his heirs subject to probate of his estate and subject to the further condition that within five years of such vesting nonresident alien heirs appear and demand the property. Prob.Code, sec. 1026; In re Estate of Caravas, 40 Cal.2d 33, 37, 250 P.2d 593; Prob.Code, sec. 300; In re Estate of Sorensen, 44 Cal.2d 306, 281 P.2d 870. The title so vested in the alien nonresident heirs of John Zimmermann was subject to probat and to the provisions of Section 1027 of the Probate Code, which section provides that when the probate proceedings have been completed, save for distribution of the residue of the estate, the court must distribute the property remaining for distribution 'to known heirs, devisees or legatees entitled to succeed thereto' and if there be a balance belonging to unknown heirs, devisees or legatees then the court must distribute such balance to the State of California. The property so distributed is to be held by the State Treasurer for a period of five years from the date of the decree making such distribution, within which time any person may appear 'in the superior court for the county of Sacramento and claim the estate or any part thereof' but 'Rights of nonresident aliens shall be governed by the provisions of section 1026 of this code.'...