PETERS v. McKAY

On Eeheabing

BRAND, C. J.

The plaintiffs have filed a petition for rehearing in which a new "contention is made, based upon facts which were not pleaded or proven in the circuit court or brought to the attention of this court until said petition was filed. Under these circumstances, the court might well refuse to give consideration to such new matter at this late date. In re Shepherd’s Estate, 152 Or 15, 45 , 41 P2d 444 , 49 P2d 448 ; Paine v. Meier & Prank Co., 146 Or 40, 53 , 27 P2d 315 , 29 P2d 531 . Owing, however, to the importance of the questions involved in this litigation, we have given to the plaintiffs unprecedented extensions of time within which to prepare their petition and brief and to secure properly authenticated copies of the documents on which they rely.

With commendable candor, counsel for the plaintiffs have prefaced their brief on petition for rehearing with the following statement:

“Counsel for appellants feel that they owe and at the outset of this brief should express to this Court their apologies and an explanation for not having heretofore raised and argued the points discussed in this brief. The explanation * * * is that they did not, at the time of their previous presentation and argument of this case, know of *460 the Royal Decree No. A-l, issued by the Royal Government of the Kingdom of The Netherlands on May 24,1940, which decree is, we think, determinative of this case.”

The circumstances tend to exonerate counsel of any charge of negligence in failing to present The Netherlands Royal Decree at an earlier time. It appears that its existence was not known until the opinion of this court was brought to the attention of the embassy of The Netherlands in Washington, D. C. While not required to do so, we will now give consideration to the effect of that decree.

The action was brought by the plaintiffs, or petitioners, as the Dutch heirs of Herman Trebas, deceased, seeking a refund to them of the net proceeds of the decedent’s estate which was turned over by the administrator to the state of Oregon as an escheat. The facts are fully stated in our original opinion. The original petition was filed in 1942 but it was held invalid for the specific reason as stated by the trial court, that the petition was not signed and verified by any of the claimants. The second petition was filed on 1 July 1946 under the provisions of OCLA, § 21-113, as amended by Oregon Laws 1943, chapter 332. The statute, as set forth in the code, and as amended, authorizes certain persons to sue the state to recover escheated property “within 10 years after payment of the proceeds of escheated personal property to the state * * The trial court held that the 10-year statutory period of limitation had run before the second petition was filed. Only one assignment of error was made in appellants’ original brief on appeal, namely:

“The Court erred in not holding that the ten year statutory period of limitation was tolled by war.”

*461 We held that the statutory limitation was suspended by war from 11 December 1941 to 8 May 1945 but that the 10-year period had fully run before the suit was commenced on 1 July 1946. The first assignment of error in plaintiffs’ petition for rehearing is as follows:

“The Court erred in taking December 11, 1941, the date of the declaration of war by the United States of America upon Germany, as the commencement date of the period of tolling the ten year limitation upon the filing of the refund petition. Such commencement date was correctly not later than May 24,1940.”

A true translation of the -official text of The Netherlands Eoyal Decree of May 24, 1940, duly certified by the Minister Plenipotentiary in The Netherlands embassy at Washington, D. C., has been submitted to us. The contents of the decree may also be found in Anderson v. N. V. Transandine Handelmaatschappij, 289 NY 9 , 43 NE2d 502 . The relevant portions thereof are as follows:

“ ‘ (1) Title to claims against persons, partnerships, companies, corporations, firms, institutions and public bodies, which claims belong to natural or legal persons domiciled in the Kingdom of the Netherlands, * * * in so far as these claims are in any form whatsoever capable of being encumbered, pledged, transferred or sold or the like, outside the Eealm in Europe, is hereby vested in the State of the Netherlands, as represented by the Eoyal Netherlands Government, temporarily resident in London and exercising its functions there

li* # # * #

“‘(3) The proprietary rights vested in the State of the Netherlands, by virtue of the provisions of the preceding paragraphs, shall only be exercised for the conservation of the rights of the former owners.’ * * *”

*462 The plaintiffs contend that their claim and “their right to make and file a petition for refund of this escheated estate were vested as of May 24, 1940, in the State of The Netherlands by the Eoyal Decree * «= They contend further that by virtue of the decree of 24 May 1940 they were prevented from asserting and enforcing their right “by a paramount authority, that is the Grovernment of the State of The Netherlands * * Their argument is that whenever some paramount authority prevents a person from exercising his legal remedy, the time during which he is thus prevented is not to be counted against him in computing the period of limitation. Cases are cited in support of that general proposition. Plaintiffs’ conclusion is, therefore, that the running of the 10-year statute limiting the right to sue was suspended from 24 May 1940, the date of the Royal Decree.

It will be observed that under the Royal Decree, certain claims of persons domiciled in The Netherlands were vested in the State of The Netherlands, but only “so far as these claims are in any form whatsoever capable of being encumbered, pledged, transferred or sold or the like.” Let us see if the claims of the plaintiffs were capable of being encumbered, pledged, transferred or sold or the like. The statute providing for the recovery of escheated property, as enacted in 1903, merely provided that within ten years a person may file a petition “showing his claim or right”, and “if it be determined that such person is entitled to the proceeds” the court shall direct that they be delivered to him. LOL, §§ 73-74.

In Engle v. State Land Board, 164 Or 109 , 99 P2d 1018 , the plaintiff, as administratrix of the estate of Helena Pettingill, brought an action under the statute to recover escheated funds. The defendants demurred *463 upon the ground, among others, that the plaintiff was without legal capacity to institute the proceeding. The court pointed out that the act of 1903, to which we have referred, did not require the claimant to state the relationship, or that he claim the property as heir or next of kin. The court then called attention to the amendment of 1927, Oregon Laws 1927, chapter 281, which required that the petition be verified by the claimant; that his age and place of residence be stated; and that it be alleged that the petitioner made his claim as heir and next of kin, setting forth the relationship. The court said:

* * On the contrary, the legislature purposely foreclosed the right of the administrator and the creditors of the deceased owner to participate in the proceeds of the recovery; and by requiring the petitioner to verify the claim, to disclose his age and place of residence, to state in the petition that he claims as heir or next of kin of the former owner and to set forth his relationship to such owner, the legislature plainly withheld from a personal representative of a deceased heir or next of kin the right to institute such a proceeding. ’ ’

The court quoted with approval from many authorities to the effect that the legal title of the state to escheated property can be divested only in the mode and by the persons designated by law, and that no person can take advantage of a statute protecting the rights of heirs unless he was a legally qualified heir at the time of his ancestor’s death. The court pointed out that since the statute was one giving legislative consent, on the part of the state, to be sued, “Any terms or conditions, thus prescribed, apparently are jurisdictional facts, and must be fully complied with. Consequently suit cannot be maintained against a state, unless plaintiff is a person, or among the class of *464 persons, to whom the state’s consent has been granted; * * The foregoing was quoted by the court from 59 CJ, States, §461. It was held that suit by an administratrix had not been authorized by the statute and that the defendant’s demurrer should have been sustained.

In Wood et al. v. Sprague et al., 165 Or 122 , 106 P2d 287 , the plaintiffs, as heirs of a deceased person, brought action to recover moneys alleged to have escheated to the state. Referring to the language of the statute which authorizes such actions, the court said:

“* * * it re-enforces the view that the legislature had in mind only an action by heirs to recover property which, in one or the other of those modes, had been adjudged escheat and had come into the hands of the state treasurer pursuant to an order or judgment in such a proceeding.”

Engle v. State Land Board, supra, was cited and approved.

A similar problem was before the court in Haley v. Sprague et al., 166 Or 320 , 111 P2d 1031 . An action was brought to recover escheated funds by the plaintiffs who were heirs of the decedent. The administrator of two of the deceased heirs was joined as a party plaintiff. The defendants demurred to the complaint upon the following grounds: (a) That the administrator lacked legal capacity to sue; (b) defect of parties plaintiff; (c):

“ ‘several causes of action have been improperly united, to wit, the cause of action of each one of the plaintiffs with one another and the said administrator of two separate estates with different interests and with other plaintiffs’; (d) ‘the plaintiffs have not nor has any one of them legal capacity *465 to sue inasmuch as the plaintiffs, respectively, have not filed a verified petition.’ ”

The trial court overruled the demurrer and gave judgment for the plaintiffs. Upon appeal, this court held that “The demurrer should have been sustained to the causes of action presented by Decker”, who was the administrator, citing Engle v. State Land Board, supra. The judgment in favor of the other plaintiffs was affirmed. It was held that several heirs may join in an action to recover escheated funds. Concerning the statute, the court said further:

“* * * Section 21-113, in our opinion, is a consent statute—it grants the state’s consent to be made a party defendant in actions of this ldnd. One who is an heir at law, within the purview of our Statutes of Descent and Distribution, of a decedent whose estate is held by the state as an escheat would be in a position to maintain an action against the state for the property if the state were suable. When this action was instituted, the ordinary rules of pleading, practice and evidence would outline the procedure to be followed. But the state can not be made a defendant without its consent. The constitution or a statute must yield the state’s consent, otherwise the state can not be made a defendant. Section 21-113 serves the purpose just mentioned; it grants the needed consent. But, since the state was not compelled to grant its consent, it was in a position to exact conditions of and impose terms upon those in whose favor it yielded the needed consent. Exercising those privileges, §21-113 states the circumstances under which an heir may recover an estate in the possession of the state land board, the time within which he must begin his action, and the manner in which he must serve the state with notice of the fact that he has commenced an action. We are satisfied that § 21-113 is a consent statute. The few instances in which items of procedure are prescribed in the act obviously were *466 prompted by a legislative belief that in those specific instances a course different from the usual one was desirable. Wherever those passages exact a course of practice different from the usual, their demands must, of course, be followed. In all other instances the common rules which govern pleading, practice and evidence in actions for the recovery of property must be followed. * # *”

The court recognized that it was necessary for one of the heirs as plaintiff to verify the complaint, but held that the requirement had been complied with.

Under these decisions, it is clear that OCLA, § 21-113 as amended, must be treated as a consent statute, the terms and conditions of which must be fully complied with, and that the right which is created by the statute is personal to the heirs and next of kin of the deceased and can be enforced by no other person, not even by the administrator of an heir. It follows that the claims of the heirs were not capable of being “encumbered, pledged, transferred or sold or the like” and they were therefore never vested in the State of The Netherlands by virtue of the Eoyal Decree or otherwise. The obvious purpose of the Eoyal Decree was to prevent the property and rights of persons living in The Netherlands territory occupied by the Germans from falling into the hands of the enemy. Since the claims can be enforced in this state only by the heirs, and upon a petition verified by an heir, and since the heir must, by such petition, show his claim of right as an heir, it follows that the claim of the plaintiffs, under our statute, to recover an escheat, was neither within the letter nor the intent of the Eoyal Decree because such action was unnecessary for the protection of the Dutch heirs. An assignment by the Dutch heirs, either to the Eoyal Netherlands government, or voluntarily to a third party, or involuntarily *467 to a German enemy, would have carried with it no right enforceable in this state under our statute.

The plaintiffs rely upon Anderson v. N. V. Transandine Handelmaatschappij, supra, 289 NY 9 , 43 NE2d 502 . In that case the plaintiff, an assignee of a foreign claimant, brought an action for damages against the defendants who were subjects of the State of The Netherlands. Attachments issued against property in the state of New York alleged to belong to the defendants. The State of The Netherlands intervened claiming that the property attached had been vested in, and belonged to it, by virtue of the Royal Decree. The petition of the intervener was sustained and the attachment was vacated. The case was carried to the Court of Appeals and was affirmed. The court said:

“The certification by the State Department that the Government of the United States has recognized the Royal Netherlands Government in England as the government of the State of the Netherlands constitutes a determination of political questions concerning the legitimacy of that government and its decrees. Guaranty Trust Co. of New York v. United States, 304 U.S. 126 , 58 S.Ct. 785 , 82 L.Ed. 1224 . The scope and the effect within this State of a decree promulgated by the recognized government are judicial questions, just as the scope and effect of the law of any long-established and recognized friendly foreign government, like that of England, would be judicial questions. The certification was not intended to withdraw from the court jurisdiction or right to determine those questions, just as it would decide other judicial questions, without advice or suggestion from the political branch of the government.”

In the Anderson case the property attached was of a character which was capable of being encumbered, pledged, transferred or sold or the like and it therefore *468 came squarely within the terms of the Royal Decree. In the pending case the plaintiffs’ rights against the state of Oregon were personal to them as heirs, and could be enforced only by them. The Royal Decree had no effect upon the plaintiffs’ title.

The plaintiffs contend that statutes of limitation are suspended when paramount governmental authority intervenes to prevent the enforcement of a right within the time limited. St. Paul, Minneapolis & Manitoba Ry. Co. v. Olson, 87 Minn 117, 91 NW 294 ; Johnson v. Johnson, 182 Okl 293, 77 P2d 745 . An Oregon statute recognizes this principle by providing that “When the commencement of an action is stayed by injunction or a statutory prohibition, the time of the continuance of the injunction or prohibition shall not be a part of the time limited for the commencement of the action.” OCLA, § 1-218. But the authorities which give this effect to paramount governmental authority have reference to acts of the state where the right is to be enforced. Plaintiffs’ contention that the “paramount authority” of a statute of a foreign country would suspend the running of a statutory limitation of the state of Oregon presents a far different question, one which we need not consider, since the Royal Decree did not apply to the plaintiffs’ claim.

The plaintiffs also, for the first time, refer to two executive orders of the President of the United States as tending to show that the plaintiffs were prevented thereby from asserting their rights from and after 10 May 1940. If the executive orders did prohibit the filing of plaintiffs’ claim as contended, a serious question would be presented, but the orders had no such' effect. The first order, No. 8389, of 10 April 1940, did not apply to persons in The Netherlands. The second, No. 8785, was issued by the President on 14 *469 June 1941, with a provision therein that the effective date as to such persons should be 10 May 1940. This order applied to persons in The Netherlands. It prohibits certain transactions with reference to the transfer of banking credits, foreign exchange, gold and the like, except as authorized by the Secretary of the Treasury, but the order does not prohibit communication by mail between The Netherlands and the United States, nor does it include within the scope of its prohibitions the mere act of filing a complaint for refund of proceeds of escheated property or for any other purpose. The order has no relevance in this case.

The plaintiffs contend, at least by implication, that we should have held that the running of the statutory limitation was suspended, commencing on 10 May 1940 when Germany invaded The Netherlands, because of the difficulties involved in communicating between The Netherlands and the United States after that date. We gave full consideration to that matter in our previous opinion. We held that the running of the statutory limitation was suspended on 11 December 1941, the date of our declaration of war upon Germany. We conceded that “the belligerent occupation of The Netherlands by Germany, prior to the entry of the United States into the war, probably did render communications with the United States difficult in fact”, but we added that we could find no law indicating that communication prior to that date was illegal or that American courts were closed to the plaintiffs during that period. In their petition for rehearing the plaintiffs have submitted a communication from the Acting Assistant Postmaster General of the United States which we think supports our original conclusion. We quote:

“* * * You ask whether any official notices *470 were issued by this Department which would reflect the status of mail service with the Netherlands during the periods prior to December 11, 1941, and subsequent to May 8, 1945.

“There were no such official notices issued prior to December 11, 1941, which was the date of the Order which suspended all mail service to the territories occupied by Germany, including of course the Netherlands. * * *”

He acknowledges, as did we, that in fact, delivery of mail was frequently obstructed and delayed, but it is clear from his statement, that mail service was not suspended until the entry of the United States into the war. Since we have held that the running of the statutory limitation was suspended by war on 11 December 1941, the prohibition of communication by mail only after that date adds nothing to the plaintiffs ’ case. All of the matters presented in the petition for rehearing, with the exception of the contentions based upon the Eoyal Decree and the executive order of the President of the United States, received full consideration in our first opinion. We adhere to the views therein expressed. The petition for rehearing is therefore denied.