Petition for Writ of Certiorari — Gumen v. California

SUP,

7 .

Supreme Court, US

FILED

tatesss 8

Supreme Court of the United

October Term 1971

In re Estate of

JOHN HORMAN,

Deceased.

vs.

THE STATE OF CALIFORNIA,

Objector and Appellant,

ULIANA ANDREEVNA GUMEN et dl.,

Claimants and Respondents.

Petition for Writ of Certiorari to the Supreme Court

of the State of California.

SLAFF, Mosk & RUDMAN,

By EDWARD Mosk,

6920 Sunset Boulevard,

Hollywood, Calif. 90028,

Attorneys for Petitioner,

Claimants and Respondents.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

RR ARE TSAR AOR OO 1

I capil e osenesesaencitastibiacisiientacensudbsabcaadcbdadianidiise 2

Constitutional and Statutory Provisions Involved .... 2

a cl ee A 2

UP ee in sicenintinsecincssonsnnenconeionane 4

Reasons for Granting the Writ ...............22000022200000..- 8

I.

A Non-Resident Alien Acquiring Property in the

State of California Is Entitled to Hold and/or

Dispose of That Property Without Differentia-

tion From the Restrictions Placed Upon Citi-

zens or Resident Aliens to Dispose of Com-

parable Property. The Arbitrary Discrimination

of Probate Code §1026 Is Violative of the Due

Process and Equal Protection Provisions of the

Fourteenth Amendment .............................--.----

Il.

There Is No Acceptable State Purpose Justifying

the Arbitrary Discrimination Against Non-

Resident Aliens Contained in Probate Code

SUID sithaccainicils dsm cedaadeasinmsabniccarniaalsiaaslrakalaicaiitoensin

International Law Standards of Justice Prohibit

Discrimination Against Aliens Who Hold Prop-

OU errr ann

IV.

Where a State Law Without Rational Basis Dis-

criminates Against Non-Resident Aliens in the

Ownership of Property, Such Statute Is an Un-

11

14

Page

constitutional Infringement on the Exclusive

Power Over Foreign Relations Vested by the

United States Constitution in the Federal

I iiiiscisecstleag Gi sniabsiciiaidcaasbarumicdiccntenie 15

V.

Probate Code 1026 Is Part of an Invidious Pat-

tern of Discriminatory Legislation Directed

Against Aliens by the State of California and

Must Be Struck Down as Have Most of the

Ce TR I sancti 18

NERS IES Ae SOE SOS 19

Appendix “A.” Opinion of the Court of Appeal

Exhibit “B.” Dissenting Opinion by Peters, J. .... 24

Exhibit “C.” Memorandum Opinion Letter Dated

Pe ice teirinn 26

Findings of Fact and Conclusions of Law ............ 29

Appendix “D.” United States Constitution Four-

Ie PN siicichencitcsctscncteicidincoeietincrnsiiciaiiniinitn 36

United States Constitution Article I, Section 8 .... 36

California Probate Code Sections 1026 and 1027

Code of Civil Proced ion 1430 ................ 39

TABLE OF AUTHORITIES CITED

Cases | Page

Auto Equity Sales v. Superior Court, 57 Cal. 2d 450 5

Bethiehem Steel Corporation v. Department of

Water and Power, 276 Cal. App. 2d 221, 80

RE TD cdssviecehaicuabiniebdierecninelecaenee 16, 17, 18

Gerry of California v. Superior Court, 32 Cal. 2d

IT sasidcsa:siactg cseosnscidadicesCaisageapeescnips an abiaaadudanceisasipienie ciate 17

Gogabashvele, Estate of, 195 Cal. App. 2d 503 ....4, 6

Haruye Masaoka v. People, 36 Cal. 2d 883 ............ 18

Hines v. Davidovitz, 312 U.S. 52, 61 S. Ct. 399..16, 17

Home Insurance v. Dick, 281 U.S. 397, 50 S. Ct.

B38 nnn nnnn nnn - nnn onennnenennnnnenencnenensweneecee 9

Horman, Estate of, 265 Cal. App. 2d 796 ........

Sdedealasslaebeisctieielaiasesleislondeaibaanpeiahoatl at 1 2

Johnson v. Eisentrager, 339 U.S. 763, 70 S. Ct.

PE eects ssenedldeamlactndomsinilehiacesuieinhsapinsieiaeidacastibiniliatniaion 8

Kraemer, Estate of, 276 Cal. App. 2d 715 ........ 16, 18

Larkin, Estate of, 65 Cal. 2d 60 -2..0.....2-...---s0ccesoe-0- ‘5

Lawrence, Estate of, 84 Cal. App. 2d 500——. 8

McGowan v. State of California, 366 U.S. 420, 81

<SEE -TIIIIEEE -sisaltheesconseninnacisicentannaterestnsnsacuibtnidineiualasaiaes 12

Nossen’s Estate, In re, 118 Montana 40, 152 P. 2d

216 ..... - — ‘ ne . 9

Pendergast, Estate of, 143 Cal. 135 ~.......2202222........ 8

Perez v. Lippold, 32 Cal. 2d 711 ...........-....-.--........-- 18

Purdy and Fitzpatrick v. State of California, 71 Cal.

2d 587 . isaniaetininacliainisiasaianinncinatinianiiliants 12, 17, 18

Romaris, Estate of, 191 Cal. 740 ......2.000002220...... 8

Russian Volunteer Fleet v. United States, 282 U‘S.

481 ..... kaa = Ee ae oc a ee 9

iv.

Page

Sardino v. Federal Reserve Bank of New York, 351

IE ted 0 OT 10,

Sociedad Nacional de Honduras v. Marineros de

McCullough, 201 F. Supp. 82 ................-............

Sorensen, Estate of, 44 Cal. 2d 306 ~.....000020200000.

Takahashi v. Fish and Game Commn., 334 USS.

ae We = PRET eee

United States v. Pink, 215 U.S. 203, 62 S. Ct. 552..

Yick Wo v. Hopkins, 118 U.S. 350 ........0220000.

Zschering v. Miller, 389 U.S. 429, 88 S. Ct. 664

Statutes

California Probate Code, Sec. 231 .......20.2.e. eee.

California Probate Code, Sec. 259 —0200002 ee.

California Probate Code, Sec. 1026 ......0...00..00000...

ie ae &) a GO Te & OE TH, TK iM, IS, 16,

California Probate Code, Sec. 1027 .................. zs

California Code of Civil Procedure, Sec. 1430 ........

Restatement, Foreign Relations Law 2d, Sec. 165 ..

Restatement, Foreign Relations Law 2d, Sec. 166 ..

Restatement, Foreign Relations Law 2d, Sec. 185 ..

United States Code, Title 28, Sec. 1257(3) ........

United States Constitution, Art. I, Sec. 8 ....2, 3,

United States Constitution, Fifth Amendment ......

United States Constitution, Fourteenth Amendment

Lars seinen bitbebeasedicaulamauianisacdaticlagaasenee >» & Hi,

Textbook

4 American Journal, Root, Elihu, International ae

IN THE

Supreme Court of the United States

October Term 1971

In re Estate of

JOHN HORMAN,

Deceased.

vs.

THE STATE OF CALIFORNIA,

Objector and Appellant,

ULIANA ANDREEVNA GUMEN et al.,

Claimants and Respondents.

°

Petition for Writ of Certiorari to the Supreme Court

of the State of California.

Petitioners Uliana Andreevna Guman, Evdokia An-

dreevna Javrik, Anna Ivanovna Petlevany and Vera

Ivanovna Vinichenko respectfully pray that a Writ of

Certiorari issue to review the Judgment of the Supreme

Court of the State of California entered in this pro-

ceeding on the 10th day of June, 1971.

Opinions Below.

The Opinion of the court below is reported at 5 Cal.

3d 62, (1971), and is attached hereto and made a

part hereof as Appendix “A”. The Supreme Court of

Californiz adopted the Opinion of the Court of Appeals

of the Staie of California, Fourth Appellate District,

Division Two, except that Mr. Justice Peters appended _

a dissenting opinion which is attached as Exhibit “B”

—-2—

herein. Judge James Judge im the Superior Court in

and for the County of Orange, found for the petitioners

and filed a Memorandum Opinion by letter dated Feb-

ruary 19, 1909, a copy of which is attached hereto

and made a part hereof as Exhibit “C”, together with

the Findings of Fact and Conclusions of Law filed

March 17, 1969.

Jurisdicti

Judgment and Opinion of the Supreme Court of Cali-

fornia was issued on June 10, 1971. Jurisdiction of

this Court is invoked pursuant to 28 U.S.C. $1257

(3).

Constitutional and Statutory Provisions Involved.

U.S. Constitution, Fifth Amendment and Fourteenth

Amendment; U.S. Constitution, Article I, §8; California

Probate Code §1026; §1027; Code of Civil Procedure

§1430. (See Appendix D).

Questions Presented.

1. Where the Probate law of California vests title

to the estate of a California decedent in his heirs as of

the date of death. may California thereafter deny due

process and equal pretection of the laws to a non-resi-

dent alien by confiscating the vested property interests

of the non-resideut alien solely by reason of the failure

of the non-resident alien to file his claim within five

years, while American citizens, resident or non-resi-

dent, anc resident aliens, are allowed a longer time

to claim their shares?

sss

_—

2. Whether California Probate Code §1026 requir-

ing a non-resident alien to appear and claim his vested

share of a California estate within five years violates

the equal protection and due process provisions of the

Fourteenth Amendment in that it places an unreason-

able and arbitrary burden and requirement upon the

non-rcsident alien not required of a non-resident citi-

zen similarly situated?

3. Whether Probate Code §1026 denying to non-

resident aliens property rights otherwise vested in them

by the Probate laws of the State of California consti-

tutes an arbitrary and unreasonable burden upon the

foregin policy of the United States and violates basic

principles of International Law by depriving a non-

resident alien of his property rights in California without

just compensation and for no justifiable public pur-

pose?

4. Whether Probate Code §1026 violates the sep-

aration of powers provided for in Article I, §8 of the

United States Constitution in that it permits and re-

quires the State courts to confiscate the property of non-

resident aliens within the State of California in such a

discriminatory manner as to cause embarrassment to

the foregin relations of the United States.

5. Whether Probate Code §1026 is part and parcel

of a discriminatory scheme of laws designed by the

State of California to distinguish arbitrarily and capri-

ciously between the property rights of non-resident aliens

and the property rights of citizens, resident and non-

resident, and resident aliens, in disregard of the pro-

Neer eS

_ a

"visions of the equal protection and due process clauses

of the Fourteenth Amendments and the Separation of

powers provision of Article I, §8.

Statement of the Case.

John Horman died intestate December 25, 1961 in

Orange County, California. His heirs-at-law consisted

of twenty-four persons’, all residing in remote areas of

the Soviet Union at the date of his death.*

At the time of Horman’s death, California law con-

tained a specific statute governing the rights of non-

resident aliens to inherit.* Probate Code §259 provided

in part that there must be reciprocal rights of inheritance

with the foreign state in which the alien resided, other-

wise the share of the non-resident alien heir would es-

cheat to the State of California.*

Probate Code §259 was interpre:ed on September 12,

1961 by the California District Court of Appeal in

Estate of Gogabashvele, 195 Cal. App. 2d 503, to

exclude citizens of the Soviet Union from the right to

participate in California estates by reason of the fact

that, as a matter of California law, the Soviet Union

was not reciprocal with California in matters of in-

heritance. The Supreme Court of California denied a

hearing on November 8, 1961. The ruling became final

and, under the California law of Stare decisis, a matter

1A sister, children and grandchildren of pre-deceased full

brothers, and the children and grandchildren of a half-brother.

*The places of residence the Soviet Union from the

Ukraine on the west to near on the east.

"In addition to §1026 at issue here.

Ss

online

of precedential effect (Auto Equity Sales v. Superior

Court, 57 Cal. 2d 450 (1962)).

Until August 2, 1966, when the Supreme Court of

California rvled in Estate of Larkin, 65 Cal. 2d 60

(1966), that citizens of the Soviet Union could inherit

from a California estate and that reciprocity did exist

between the United States and the Soviet Union, citi-

zens Of the Soviet Union were effectively prohibited

from inheriting in the State of California and efforts by

Soviet citizens to claim estates in the State of California

were futile.°

Twenty of the twenty-four heirs-at-law of John Her-

man did make appearances in the California court

prior to the decision of the Supreme Court of Califor-

nia in Estate of Larkin, 65 Cal. 2d 60 (1966), but

no effort was made to bring the matter to hearing in

the Probate Courts of Orange County until subsequent

to the decision in Larkin.

The four petitioners herein are direct descendants

of a half-brother of the decedent residing in a peasant

community in the Ukraine. The eldest brother of this

family, Stepan Lavrik, filed a claim prior to the expira-

tion of the five-year period required by Probate Code

$1026. The four petitioners herein* did not present

their claims until subsequent to the decision in Estate of

Larkin, but prior to the commencement of trial on the

issue Of heirship in the Superior Court of Orange Coun-

ty. Their claim was therefore more than five years

i

i

_

after the date of death, but less than five years if the

period in which the law of California excluded Soviet

heirs from participating in California estates was tolled.

The issue of heirship was tried in Orange County

without any question as to petitioners’ compliance with

Probate Code §1026 being raised by the State of Cali-

fornia. The trial court ruled against all twenty-four

claimants. The Court of Appeal reversed as to all twenty-

four petitioners Estate of Horman, 265 Cal. App. 2d

796 (1968) and ordered a new trial.

One day prior to commencement of the second trial,

the Attorney General of California filed a pleading

contending that the four petitioners herein were barred

by reason of Probate Code §1026. Probate Code §1026

provides that a non-resident alien must claim his share

oi a probate estate within five years or the share of

the estate to which he would be otherwise entitled is

permanently forfeited to the State of California.’ As

to all other beneficiaries of estates, if they do not make

appropriate claim, the share goes either to other more

remote heirs or escheats to the State of California with

provision that the appropriate heir may claim at any

time within five years of the date of escheat (see Pro-

bate Code §231]}.

The trial court rejected petitioners’ claim that the

State was estopped to raise the issue at such a late date

and declined to hold Probate Code §1026 unconstitu-

tional. The trial court gave judgment to the four pe-

titioners (as well as the other twenty claimants), hold-

ing that the provisions of Probate Code §1026 had

been tolled during the period that Estate of Gogabash-

vele, supra was the law of the State of California.®

"See complete text in Appendix “D”.

8See Opinion in Exhibit “C”.

—

The State of California appealed from this decision

in its entirety, but on March 3, 1970, the Court of

Appeal dismissed the appeal as to those twenty of the

twenty-four who had appeared within five years of

the date of death, leaving the appeal effective only

as to the four petitioners herein. Distribution to the

twenty Soviet claimants was thereafter made.°

At each stage of the proceedings, commencing in

the Superior Court [R.T. 155 ff.], in the Court of

Appeal (Resp. Reply Br. 16 ff.; Resp. Supp. Br. 17

ff.), and the Supreme Court (Petition for Hearing,

23-44), petitioners in timely fashion raised all of the

constitutional issues advanced herein.

this proceeding is approximately $40,000.00

gamma te de cane te a wo ee ee ee

for the application of Probate Code $1026.

—

REASONS FOR GRANTING THE WRIT.

I.

A Non-Resident Alien Acquiring Property in the State

of California Is Entitled to Hold and/or Dispose

of That Property Without Differentiation From

the Restrictions Placed Upon Citizens or Resident

Aliens to Dispose of Comparable Property. The

Arbitrary Discrimination of Probate Code §1026

Is Violative of the Due Process and Equal Pro-

tection Provisions of the Fourteenth Amendment.

The Equal Protection Clause has been held to apply

to persons “within its [the State’s] jurisdiction” (John-

son v. Eisentrager, 339 U.S. 763, 771, 70 S. Ct. 936,

940 [1950]).

Under California law, upon the death of the dece-

dent, the heirs-at-law succeed to their designated inter-

ests in the estate subject, under provisions ci Probate

Code §1026, to divestment. Their ownership interest in

the property, however, is vested on death (Estate of

Lawrence, 84 Cal. App. 2d 500, 505-506; Estate of

Sorensen, 44 Cal. 2d 306, 308; Estate of Romaris, 191

Cal. 740, 744; Estate of Pendergast, 143 Cal. 135, 140).

Acquisition of a right to property within the state

brings the non-resident alien within the jurisdiction of

the State of California to require at the very least pro-

tection of the alien’s rights to that specific property.

These rights on a minimal basis must include elemental

principles of due process and protection against dis-

criminatory application of the laws of the State. The

Supreme Court of California, for purposes of its opin-

ion in this proceeding, assumed, without deciding, the

validity of this proposition (Estate of Hormen, supra,

at 74).

onlin

The issue presented by this case does not appear to

have been directly resolved by the Court, but clearly the

Mexican corporation involved in Home Insurance v.

Dick, 281 U.S. 397, 50 S. Ct. 338, (1930) was a non-

resident corporation, and involved therein was pioperty

held in the United States. The language of the court

rested on due process but the result there is not dis-

tinguishable from that sought by the petitioners herein.

Similarly, in Russian Volunteer Fleet v. United States,

282 U.S. 481 (1931), the sole connection between the

Russian corpoation, as a non-resident alien, and the

United States was that it had property in the United

States. The court refused to permit the confiscation of

the property of the non-resident alien corporation, even

where the evidence indicated the property of American

citizens was being confiscated in the nomeland of the

alien corporation.

Today, when the requirements of international trade

make it necessary that capital flow with relative free-

dom across international boundaries, cases like Home

Insurance and Russian Volunteer Fleet illustrate the vi-

tal need that property interest of non-resident aliens be

given fundamental and non-discriminatory protection in

the United States. The same overriding reasons dictate

that property rights acquired by other means by non-

resident aliens, including inheritance, must be similarly

accorded the protection of our laws.

Montana, in In re Nossen’s Estate, (118 Montana

40, 152 P. 2d 216 [1945] ), where the rights of,a non-

resident alien to inherit property had vested, held that

due process prohibited the State from divesting the non-

resident alien of his property rights based upon the

subsequent passage of a reciprocity statute. The effect

Nee ese

_ on

of California’s action under Probate Code §1026 as to

the alien who loses his property rights arbitrarily and

discriminatorily is the same as in Montana.

Whether we consider the issue one of due process

or equal protection is immaterial. At bottom we are

faced with the necessity of according elemental fair

dealing to persons who are within our jurisdiction by

reason of the vesting of an ownership interest in prop-

erty; and not to arbitrarily deprive them of that prop-

erty by casting them into an unprotected category

known as “non-resident aliens.”

We are not here discussing the type of equal pro-

tection which requires physical presence in the United

States, such as equality in access to transportation,

schools, housing, etc., We are talking about elemental

fairness in treatment with relation to property rights. It

therefore matters not whether we define the right in

terms of equal protection or define it in terms of the

accepted doctrine that even non-resident aliens are en-

titled to due process of law in matters relating to their

property rights within the United States.

In Sardino v. Federal Reserve Bank of New York,

351 F. 2d 106, the Court asserts:

“The due process clause speaks in terms not of

taking, but of deprivation; we find it hard to say

there is no deprivation when a man is prevented

both from obtaining his property and from realiz-

ing any benefit from it for a period of indefinite

duration which may outrun his life. . .

“The government’s second answer that the consti-

tution of the United States confers no rights on

non-resident aliens is so patently erroneous in a

case involving property in the United States that

Ee

—

we are surprised it was made. Throughout our his-

tory the guarantees of the Constitution have been

considered applicable to all actions of the govern-

ment within our borders—and even to some with-

out.”

The Sardino court points out that our economic po-

sition is due in part to European investors who place

funds at risk in the United States believing that they

are protected by the constitutional gurarantees.

If persons who invest money in the United States

without physically coming here are entitled to the equal

protection of our laws, how can we accord less rights

to those who acquire property by inheritance in the

United States? In either case, the property holder is en-

titled to be accorded fundamental principles of fairness

and equality under standards established by the Con-

stitution. The treatment of these petitioners under Pro-

bate Code §1026 did not meet those standards.

II.

There Is No Acceptable State Purpose Justifying the

Arbitrary Discrimination Against Non-Resident

Aliens Contained in Probate Code §1026.

The California Supreme Court accepted for purposes

of argument the proposition that the vesting of property

rights in the non-resident alien gave to the alien the

protection of the Fourteenth Amendment Due Process

and Equal Protection clauses. The court, however, held

that the California statutory scheme involved in Pro-

bate Code §1026 did not constitute an unconstitutional

discrimination against non-resident aliens (Estate of

Horman, supra, at 13).

There is no constitutional requirement of uniform

treatment for all persons and legislative classification

—

is permissible when made for a lawful state purpose if

the classification bears a rational relationship to that

lawful purpose (McGowan v. State of California. 366

U.S. 420, 425-6; 81 S. Ct. 1101, 1104-1105 [1961]).

The State legislation challenged herein cannot be de-

fended by any justification suggested in the court be-

low.

The California Supreme Court recognized that alien-

age is a particularly suspect classification and one which

rcquires special examination by Appellate Courts to be

certain that the classification comports with the require-

ments of the Fourteenth Amendment (Estate of Hor-

man, supra, at 75; Purdy and Fitzpatrick v. State of

California, 71 Cal. 2d 587 [1969]).

The California court justifies Probate Code §1026

because the State of New Hampshire prohibits non-

resident aliens from any inheritance rights under its

laws. While Petitioners do not concede the validity of

the New Hampshire law, the non-resident alien does

not come under state jurisdiction as in California. Cali-

fornia inheritance law vests rights to property in the

State of California in the non-resident alien. California

courts may not therefore, arbitrarily, as under probate

Code §1026 divest them of that right based solely on

status as a non-resident alien. While all non-resident

aliens are treated alike, non-resident citizens of Cali-

fornia need not appear within five years. The distinc-

tion rests solely on the fact of alienage and therefore

is unsupportable.

The suggestion that the California statutory distinction

rests solely on residency, is false on its face. An Ameri-

can citizen permanently residing in the Soviet Union on

a farm next to that occupied by the petitioners herein

would not be required to appear within five years, even

_ eee

—

though his residence is identical with that of petition-

ers.”

The California court suggests State governmental

concern that property within its borders should have an

ascertainable title within a reasonable pericd of time

so that it can be sold, developed or otherwise dealt with

(Estate of Horman, supra, at 77). A non-resident citi-

zen failing to claim his share within five years does not

forfeit his claim to the State of California. A resident

alien or a resident citizen who fails to assert his in-

terest within five years has five years after the property

escheats to the State of California under the normal

escheat statute.” to claim his intercst. Thus, California

seems only concerned to ascertain title to property be-

longing to non-resident aliens. As applied to this case

the state confiscates property as to which rightful title

has been ascertained.

The distinction that “citizens and resident aliens are

likely to have substantial contacts and relationship with

the State, directly or indirectly, through the national

government or other state governments, that. non-resi-

dent aliens lack,” is true, but meaningless in seeking jus-

tification for discriminating against non-resident aliens.

Clearly, if Estate property has escheated to the State

of California, it is because some citizen or resident alien

(or non-resident alien) has not had sufficient connec-

tion with the government to acquire knowledge of the

existence of his right. To rest the invidiows distinction

upon this matter of “contact and relationship with the

State,” is patently false. The very nature of escheat in-

dicates a “non-relationship” with the state. —

1°All persons other than non-resident heirs are governed by

the general principles of escheat found in Probate Code 1027.

11Probate Code 1027.

The fundamental applicable principles of Inter-

national Law are in essence the basic concepts of due

process of law and equal protection of law required by

the Fourteenth Amendment to the Constitution of the

United States.

In a world increasingly small and increasingly inter-

dependent our courts have recognized that “our laws

may not be applied in contravention of fundamental

human principles of law as reflected by international

law” (Sociedad Nacional de Honduras v. Marineros de

McCullough, 201 F. Supp. 82 [1962] ).

The principles of International Law violated by Cali-

fornia Probate Code §1026 are found in §§165, 166

and 185 of the Restatement, Foreign Relations Law 2d.

The Comment to §165 points out that even granting

an alien the principle of “national treatment,” (that is,

the same standard of justice as a national) is not

always sufficient and that an international standard of

justice must be observed in the treatment of aliens,

even if the state does not observe it in its treatment

of its own nationals (see Elihu Root in 4 Am. Jour. Int.

Law 521).

Under §166 of the Restatement, an alien may not

be discriminated against even though he is not a resi-

dent if he has “lawfully acquired an interest in property

subject to the jurisdiction of the state.”

Under $185, property of a non-resident alien may

be taken only if a reasonable provision is made for pay-

ment of just compensation.

—=

Probate Code §1026 violates these fundamantal re-

quirements of International Law. Probate Code §1026

not appear and claim that property within a time period

shorter than that required of citizens and resident aliens.

Such a statute does not comport with the fundamental

principles of International Law and must not be upheld

by this Court.

Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664

(1969), found that requiring an alien to estab

the exclusive power of the Federal Government over for-

- That same principle applies to Probate Code §1026

of the State of California Probate Code.

In part the rationale for Zschernig was potential

embarrassment to foreign policy of the United States.

Here the California statute permits a non-resident alien

to claim vested property in four years, eleven months,

rr

ation

twenty-nine days; but forfeits that vested interest to the

State if he claims in five years and one day, regard-

less of the explanation or reason for the failure to claim.

Where the law permits claims by its own citizens or

resident aliens subsequent to the five-year period and de-

nies the same right to non-resident aliens, the embarrass-

ment to American foreign policy is clear.

In Bethlehem Steel Corporation v. Department of

Water and Power, 276 Cal. App. 2d 221, 80 Cal. Rptr.

800 (1969), California concedes the undue interfer-

ence with the conduct of foreign relations by its statute

prohibiting foreign bidding on California government

contracts. The arbitrary forfeiture of an alien’s vested

property interest to the State of California itself is more

likely to cause embarrassment to our foreign relations

than a refusal to permit a foreign company to bid on

a contract. Yet in Bethlehem Steel, the Court said that

“the nation as a whole would be held to answer if a

state created difficulties with a foreign power.” The

California court said there are no “contravailing state

policies which are served by the retention of such an

act.” How then can the more patent discrimination in-

volved in the instant case by supported?

It is no longer possible to merely look at the wording

of the statute to evaluate its effect upon the foreign

relations exclusive power of the Federal government

(Estate of Kraemer, 276 Cal. App. 2d 715 [1969]).

One must look to the substance and implications of

the statute (United States v. Pink, 215 US. 203,

233, 62 S. Ct. 552 [1942]). The courts need not await

~ 18See Hines v. Devidowitz, supra, 64 where the Court said

“Experience has shown that international controversies of the

moment, sometimes even to war, may arise from

wrongs to another’s subjects or permitted by

a government.

oniiiien

an instance of actual conflict to strike down a state

law which purports to regulate a subject reserved ex-

clusively to the Federal government (Purdy and Fitz-

patrick v. State of California, [71 Cal. 2d 566 (1969);

Gerry of California v. Superior Court, 32 Cal. 2d 119

[1948]).

It is naive and “provincial” to assume any longer

that a statute which so patently discriminates against

non-resident aliens will not “bear a particular onus to

foreign nations since it may appear to be a product

of selfish provincialism rather than an instrument of

justifiable policy” (Bethlehem Steel Corporation v. De-

partment of Water and Power, 276 Cal. App. 2d 221,

80 Cal. Rptr. 800 [1969]). “The classification within

the statutory scheme operates irrationally without ref-

erence to any legitimate state interest except that of

favoring . . .” citizens and resident aliens over non-

resident aliens with regard to property rights.

Such a result must detrimentally affect our foreign

relations in more than a “persistent and subtle way”

(Zschernig v. Miller, supra, 440; Hines v. Davidovitz,

312 U.S. 52, 64, 61 S. Ct. 399, 402 [1941]).

In this case, no justifiable State policy dictates that

those non-resident heirs who filed their formal claim

prior to five years could iake their vested interest in

the estate, but petitioners who by inadvertence filed in

five years and three months, must have their vested

interest confiscated by the State of California under

Probate Code §1026.

i

"See Purdy & Fitzpatrick v. State, 71 Cal. 2d 566 (1969).

= Ss

V.

Probate Code 1026 Is Part of an Invidious Pattern of

Discriminatory Legislation Directed Against Aliens

by the State of California and Must Be Struck

Down as Have Most of the Other Similarly Di-

rected Laws.

California, like many other states, has over the years

legislated in a discriminatory manner against aliens and

other groups against whom the prejudices of the ma-

jority of the legislature have from time to time been

directed.

Thus, over the years legislation involving alien land

laws Haruye Masaoka v. People, 36 Cal. 2d 883

(1952); miscegenation Perez v. Lippold, 32 Cal. 2d

711 (1948); alien bidding on state contracts Bethle-

hem Steel Corporation v. Department of Water &

Power, 276 Cal. App. 2d 221 (1969); alien fishing

rights Takahashi v. Fish and Game Commn., 334 U.S.

410 (1948); restrictive licensing laws Yick Wo v. Hop-

kins, 118 U.S. 350 (1886); discrimination against alien

inheritances Estate of Kraemer, 276 Cal. App. 715

(1969); and discrimination in employment of aliens

Purdy and Fitzpatrick v. State of California, 71 Cal.

2d 566 (1969), have been held unconstitutional.

All of these statutes had in common that they were

“the product of selfish provincialism, rather than an

instrument of justifiable policy.”*

While the specific motivation of each act may have

been different, the general motivation in each case was

to reflect a community [or legislature] prejudice which

seemed at that time to require the legislature to strike

%4Bethlehem Steel Corporation v. Department of Water &

Power, 276 Cal. App. 2d 221 (1969).

— =

out with arbitrary and discriminatory legislation, placing

the unhappy and unpopular group in an inferior posi-

tion with relation to all other elements of the society.

One by one, either the State of California or this

Court, has, when offered the opportunity, struck down

the invidious legislation. This Court should now grant

Certiorari in order to add Probate Code 1026 to the

growing list of anachronistic laws which no longer

comport with our concepts of fairplay and equality,

and which by their very nature interfere with the fun-

damental principles of International Law.

Conclusion.

This Court should grant Certiorari to correct the

erroneous result below. In a world growing increas-

ingly small and in which travel and business daily in-

crease the relationships between citizens and foreign

countries, a law which so patently discriminates against

property interests in the St-te of California only by rea-

son of the status of non-resident alicn cannot be al-

lowed to stand.

It is essential that this Court now make clear that a

state may no longer discriminate against persons hold-

ing property within its borders solely by reason of alien-

age.

Respectfully submitted,

SLAFF, Mosk & RUDMAN,

By EpwarD Mosk,

Attorneys for Petitioners.

APPENDIX A.

In the Supreme Court of the State of California, in

Bank

Estate of John Horman, Deceased. Vasilisa Pav-

lovna Melenko et al., Claimants and Respondents, v.

State of California, Objector and Appellant. L.A. 29-

832 (Super. Ct. 932697).

BY THE COURT

In this proceeding to determine heirship, the State of

California appeals from a decree ordering that certain

nonresident aliens are entitled to distribution of speci-

fied proportionate shares of decedent’s estate.

After decision by the Court of Appeal, Fourth Ap-

pellate District, Division Two, reversing the judgment

of the trial court, we granted a hearing in this court

for the purpose of giving further consideration to the

issues raised. Having made a thorough examination of

the cause, we have concluded that the opinion of the

Court of Appeal prepared by Justice Kaufman and con-

curred in by Acting Presiding Justice Tamura and Jus-

tice Kerrigan correctly treats and disposes of the is-

sues involved and we adopt such opinion as and for

the opinion of this court. Such opinion (with appro-

priate deletions and additions) is as follows*

*Brackets together, in this manner [ | without enclosing ma-

terial, are used to indicate deletions from the opinion of the

Court of Appeal; brackets enclosing material (other than editor’s

added parallel citations) are, unless otherwise indicated, used to

avoid the extension of quotation marks within quotation marks,

which would be incident to the use of such conventional punctua-

tion, and at the same time accurately indicate the matter quoted.

In so doing, we adhere to a method of adoption employed by

us in the past. (See Chicago Title Ins. Co. v. Great Western

Financial Corp. (1968) 69 Cal.2d 305, 311, fn. 2, and cases

there cited.)

a

The State of California appeals from a decree de-

termining that 24 nonresident aliens are entitled to in-

herit the estate of John Horman. The state contends that

four of the heirs (hereinafter claimants) did not “ap-

pear and demand” their interest in the estate within five

years from the “time of succession” as required by

Probate Code, section 1026, and that these interests

should escheat to the state.’

Facts

John Horman died intestate December 25, 1961,

in Orange County, leaving an estate in excess of $450,-

000. His survivors are 24 persons, including the claim-

ants herein, who, at the date of his death were, and

now are, citizens of the U.S.S.R. and reside in various

parts of the Soviet Union. The public administrator

was appointed administrator of the estate in January

1962. In January 1965, less than five years after the

date of death, the State of California filed a petition

to determine heirship [pursuant] to Probate Code, sec-

tion 1080, alleging that the decedent left no surviving

spouse or kindred; that there were no heirs entitled to

take the estate; and that the State of California was en-

titled to distribution of the estate as escheated prop-

erty. There was no allegation of any kind indicating

that the state was relying on any failure to comply

with Probate Code, section 1026. Indeed, such would

have been improper at that point, for the five years

1The appeal was from the entire judgment, purportedly di-

rected at all 24 survivors. In the briefs, however, the state as-

serted no claims or contentions with respect to 20 of the sur-

vivors and on March 3, 1970, we granted respondents’ motion

to dismiss as to all of the survivors except Uliana Andreevna

Gumen, Evdokia Andreevna Lavrik, Anna Ivanovna Petlevany,

and Vera Ivanovna Vinichenko. These four, therefore, are the

remaining respondents herein and, as indicated, will be referred to

as the claimants.

onilliais

had not then elapsed. For purposes of Probate Code,

section 1026, “time of succession” means date of

death. (Estate of Caravas, 40 Cal.2d 33, 37-38 [250

P.2d 593]; Estate of Laurence, 84 Cal.App.2d 500,

504 [191 P.2d 109].)

Within five years of the date of death, all of the

survivors except claimants “appeared and demanded”

by filing in the heirship proceeding statements of inter-

est or, in one case, a separate petition to determine

heirship. Included in one of the statements of interest

was the claim of Stepan Andreevich Lavrik.

On March 17, 1967, after the expiration of the five-

year period, and five days before the first trial, a “Sec-

ond Amended Statement of Interest” was filed by Step-

an Andreevich Lavrik in which he alleged that the

statements of interest and amended statement of inter-

est theretofore filed were true and correct except that,

in addition to himself, his parents had had seven other

named children; that the surviving children and the sur-

vivors of those children who were deceased were those

persons named in the “Second Amended Statement of

Interest,” to wit, the four claimants herein. It was stated

that the “Second Amended Statement of Interest” was

filed on behalf of claimants and was intended as a state-

ment of interest on their behalf. This document was

signed by Slaff, Mosk & Rudman by Edward Mosk

as “Attorneys for Petitioner.” It bears at the top of

the first page under the printed name and address of

said attorneys the designation “Attorneys for Claim-

ants.” (Italics supplied. )

On March 22, the matter went to trial on the afore-

said pleadings. At trial it was the state’s position that

the survivors had not sufficiently established their re-

~t-—

lationship to the decedent. At no time during the trial

did the state assert that claimants had failed to comply

with the Probate Code, section 1026, nor did the state

at this first trial assert that Slaff, Mosk & Rudman

were not authorized to represent claimants nor that

claimants were not properly before the court. Judgment

was for the state. The survivors made motions to re-

open and for new trial. Both motions were denied. All

24 survivors, including claimants, appealed from the

judgment and the orders denying these motions. On

appeal, the judgment was reversed. (Estate of Hor-

man, 265 Cal.App.2d 796 [71 Cal.Rptr. 780j.) On

the appeal no mention was made of the Probate Code,

- section 1026 problem, and the problem was not ex-

pressly determined.

On. Monday, February 3, 1969, one day prior to the

date set for retrial, the state filed a pleading entitled,

“Answer to Amended Statement of Interest,” in which,

for the first time. the state asserted claimants’ failure

to “appear and demand” within the five-year period

prescribed by section 1026.’

When the matter came on for trial the next day,

counsel for claimants moved to strike the state’s “An-

swer to Second Amended Statement of Interest,” argu-

ing vigorously that the state had waived the require-

ment of section 1026 by failing to assert it until so

late a date and should be estopped from now attempt-

ing to do so. At the conclusion of the trial, the motion

to strike was renewed.

*Actually, the pleading did not sper‘fy the code section (see

Code Civ. Pro., § 458), but the court permitted an amendment

by interlineation at the conclusion of the trial to insert the

words “as required by Probate Code, section 1026.”

a ae

The trial court declined to strike the state’s answer,

but gave judgment for claimants, concluding that “Pro-

bate Code 1026 requiring [nonresident] alien heirs to

claim within five years of date of death of the decedent

was tolled between September 12, 1961 and August 2,

1966.”

This conclusion as based upon the court’s finding as

follows: “11..... It is true that said claimants had no

effective manner in which to appear herein during the

period of time commencing with the opening of the

within estate and ending upon their appea-ance herein

in that between November 8, 1961 when hearing was

denied Ly the Supreme Court of California in Estate of

Gogobashvele [sic], 195 CA2d 503, and August 2,

1966 when the Supreme Court changed the law of Cali-

fornia in Estate of Larkin, 65 C2d 60, the law of the

State of California prevented alien heirs residing in the

USSR, irrespective of the merits of their claims in Cali-

fornia estates, from inheriting their shares of California

estates by reason of the operation of Probate Code 259 ©

as interpreted in Estate of Gogobashvele [sic]. That to

have required said claimants to have appeared herein

under such state of law would have required them to

perform an idle act in that said claimants, during such

period, were unable to obtain any effective relief in

the courts of this state, and to that extent the courts of

this state were effectively closed to them.”

Contentions

On this appeal claimants contend (1) that the tris

court was correct in its conclusion thai the period pr.

scribed by Probate Code, section :026 was tolled: (2)

that, even if the trial court’s conclusion was erroneous,

the state had waived the requirement of the section and

_

was precluded from asserting it at the second trial; and

(3) that, if the judgment cannot be sustained on e’ther

of these bases, Probate Code, section 1026 is unconsti-

tutional for a number of reasons.

The state contends (1) that the trial court was incor-

rect in concluding that the five-year period prescribed by

section 1027 was tolled, and (2) that in any event,

claimants still have not properly appeared and de-

manded because the “Second Amended Statement of

Interest” was not filed by them but by Stepan Lavrik

and his attorneys.

Tolling

The state urges that the period prescribed in Pro-

bate Code, section 1026 is not a statute of limitations

but rather, a substantive aspect of our probate law, di-

vesting a nonresident alien of his interest if he fails to

appear and demand within the time prescribed. The

cases Go indicate the substantive nature of the section.

(See Estate of Sorersen, 44 Cal.2d 306, 308 [281 P.

2d 870]; Estate of Romaris, 191 Cal. 740, 744 [218

P. 421]; Estate of Pendergast, 143 Cal. 135, 140 [76

P. 962]; Estate of Laurence, supra, 84 Cal.App.2d

500, 505-506.) Be that as it may, however, it is estab-

lished that the five-year periods prescribed by sections

1026 and 1027 of the Probate Code are subject to toll-

ing under appropriate circumstances. ( Estate of Caravas,

supra, 40 Cal.2d 33, 41-42; Estate of Srinosa, 117

Cal.App.2d 364, 370-472 [255 P.2d 843).)

The question remains, however, whether on the facts

of the instant case, the court below was justified in find-

ing the period tolled. Claimants urge that it would

have been futile for them to “appear and demand” be-

tween the decision in Estate of Gogabashvele, 195 Cal.

enfin

App.2d 503 [16 Cal.Rptr. 77], and the decision in

Estate of Larkin, 65 Cal.2d 60 [52 Cal.Rptr. 441].

Gogabashvele was decided September 12, 196] and

held that reciprocal rights of inheritance as were re-

quired by section 259 of the Probate Code* did not

exist between the United States and the U.S.S.R. Larkin

was decided August 2, 1966 and, in effect, disapproved

Gogabashvele. Claimants call our attention to cases

holding that, despite mandatory language, the five-year

period prescribed in Code of Civil Procedure, section

583 for bringing a case to trial is tolled by circum-

stances showing physical or legal impossibility, futility

or such impracticability as to amount to practical im-

possibility (Brunzell Constr. Co. v. Warner, 2 Cal.3d

545, 550-551 [86 Cal. Rptr. 297, 468 P.2d 553); Rose

v. Knapp, 38 Cal.2d 114, 117 [237 P.2d 981] and

cases there cited; Christin v. Superior Court, 9 Cal.2d

526, 530-533 [71 P.2d 205, 112 A.L.R. 1153]), and

urge that we apply the doctrine of these cases to Pro-

bate Code, section 1026.

We could agree with claimants that the implied ex-

enfin

There is no prescribed procedure for “appearing and

demanding.” (Estate of Sorensen, supra, 44 Cal.2d

306, 309; Estate of Aufret, 187 Cal. 34, 37 [200

P. 946]; State v. Smith, 70 Cal. 153, 156 [12 P. 121].)

It is not contended that a person may not “appear and

demand” by filing a statement of interest signed by his

attorney in response to a petition to determine heirship.

(Cf. Lyons v. State of California, 67 Cal. 380, 383-

384 [7 P. 763|.) Indeed, that is the manner in which

the other heirs proceeded in the case at bench.

_It appears to be the Attorney General's argument

that the “Second Amended Statement of Interest” was

signed by the attorneys not as attorneys for claimants

but as attorneys for Stepan Lavrik. This contention

is not supported by the record. Implicit, if not ex-

pressed, in the tris! court's finding number 11, above,

and the judgment is a finding that claimants did “ap-

pear and demand,” albeit belatedly. This finding is sup-

ported by the hearing on the “Second Amended State-

ment of Interest,” wherein the attorneys indicate that

they represent “Claimants.” (Italics supplied.) More-

over, the question of the attorneys’ authority to rep-

resent claimants was not presented to the trial court

by the state, and it cannot assert this matter for the

first time on appeal. (Cf. Estate of Marshall. 120 Cal.

App.2d 747, 752 |262 P.2d 42] [disapproved on dif-

ferent grounds in Kusior v. Silver, 54 Cal.2d 603.

616 (7 Cal.Rptr. 129, 354 P.2d 657)]; and see Algeri

v. Tonini, 159 Cal.App.2d 828. 832 [324 P.24 724].)

Waiver - Estoppel - Law of the Case

Claimants contend that by failing during the first

trial to raise the issue, the state waived the five-year

requirement of Probate Code, section 1026 and was

=— =

estopped to assert it [at] the second trial. It is gen-

erally held that a defense based on a statute of limita-

tions is waived unless it is pleaded or presented to the

trial court in some fashion. (Bliss v. Sneath, 119 Cal.

526, 528 [51 P. 848]; Taylor v. Sanford, 203 Cal.

App.2d 330, 345 [21 Cal.Rptr. 697]|.) The state con-

tends, however, that after the reversal on the first ap-

peal in this court, the posture of the case was as if

it had not been tried, and the state could amend its

pleadings in the discretion of the trial court. (See 3

Witkin, Cal. Procedure (1954), pp. 2382-2383 and

cases there cited.) This contention must prevail. While

piecemeal litigation is to be discouraged, and while in

the interest of the orderly administration of justice, the

trial court should exercise caution in permitting the

amendment of pleadings after trial and appeal (Dress-

ler v. Johnston, 131 Cal.App. 690, 695 [21 P.2d

969] ), nevertheless, such amendment is a matter with-

in the discretion of the trial court (Trower v. City and

County, 157 Cal. 762, 769 [109 P. 617]; see Dressler

v. Johnston, supra, at p. 694.) The Trower case ex-

pressly approved the trial court’s exercise of discre-

tion in permitting an amendment to set up a defense of

limitations not raised in the first trial or appeal. (See

also Copp v. Millen, 11 Cal.2d 122, 131 [77 P.2d

1093].)

When the state first filed its petition to determine

heirship, the section 1026 problem did not exist, in-

asmuch as five years had not passed since the death of

the decedent. The problem first arose. not expressly but

implicitly, at the time of the filing of the “Second

Amended Statement of Interest.” But this was only

five days prior to the first trial, and it is perhaps un-

derstandable that the problem was overlooked by the

—

State in the first trial. When the state placed the mat-

ter in issue at the second trial, claimants did not claim

surprise or request a continuance. Their counsel fully

and articulately presented to the trial court all of the

arguments advanced and most of the authorities cited

on this appeal. Nor is it suggested that any additional

evidence in respect to the issue might have been ad-

duced. Under these circumstances, the trial court acted

within its discretion in permitting the state to assert

the issue at the second trial. (Trower v. City and

County, supra, 157 Cal. 762.)

At our request, the parties have treated in their briefs

the question whether the state is foreclosed from rais-

ing the section 1026 problem by the doctrine of law of

the case. Generally, the doctrine of law of the case does

not extend to points of law which might have been but

were not presented and determined in the prior ap-

peal. (DiGenova v. State Board of Education, 57 Cal.

2d 167, 179 [18 Cal. Rptr. 369, 367 P.2d 865].) As

an exception to the general rule, the doctrine is also held

applicable to questions not expressly decided but im-

plicitly decided because they were essential to the de-

cision on the prior appeal. (Nevcal Enterprises v. Cal-

Neva Lodge, Inc., 217 Cal.App.2d 799, 804 [32

Cal.Rptr. 106]; see 3 Witkin, Cal. Procedure (1954)

p. 2429.) The questions presented and determined on

the prior appeal in this case were whether the survi-

vors had established the identity of the decedent and

their relationship to him, the admissibility of certain

evidence, the discretion of the trial court in denying the

motions to reopen and for new trial and the trial court’s

failure to rule on the admissibility of certain evidence.

(Estate of Horman, supra, 265 Cal.App.2d 796.) The

Probate Code, section 1026 problem was not raised

—=

by either party and was not expressly determined by

the court. Neither can it fairly be said that determina-

tion of the issue was essential to the decision. We have

concluded, therefore, that the decision on the prior

appeal did not foreclose the state from asserting this

matter at the second trial.

Constitutionality of Probate Code, Section 1026

Claimants’ contentions for unconstitutionality are

numerous and somewhat interrelated. Perhaps the most

difficult questions are posed by claimants’ contention

that the statutory scheme of which Probate Code, sec-

tion 1026 is a part constitutes an invidious discrimina-

tion against nonresident aliens depriving them of equal

protection of laws under the Fourteenth Amendment to

the United States Constitution.

It is well established that the equal protection clause

of the Fourteenth Amendment applies to aliens with-

in the territorial jurisdiction of a state (Truax v. Raich,

239 U.S. 33, 39 [60 L.Ed. 131, 134, 36 S.Ct. 7, 9-

10]; Yick Wo v. Hopkins, 118 U.S. 356, 369 [30 L.

Ed. 220, 226, 6 S.Ct. 1064, 1070]; Purdy & Fitz-

patrick v. State of California, 71 Cal.2d 566, 578

[79 Cal.Rptr. 77, 456 P. 2d 645].) We have been

cited to no case, however, applying the equal protec-

tion clause to a nonresident alien. Indeed, the equal

protection clause applies by its language only “to any

person within its [the state’s| jurisdiction,” and there is

some indication in the cases that it is inapplicable to

nonresident aliens. (See Johnson v. Eisentrager, 339

U.S. 763, 771 [94 L.Ed. 1255, 1262, 70 S.Ct. 936,

940]; Cermeno-Cerna v. Farrell, 291 F.Supp. 521.

528; Moody v. Hagen (1917) 36 N.D. 471 [162 N.W.

704, 706-707]|.) As has previously been noted, how-

_,

ever upon the death of the decedent, claimants succeed-

ed to interests in the estate of the decedent subject to

divestment (Estate of Sorensen, supra, 44 Cal.2d 306,

308; Estate of Romaris, supra, 191 Cal. 740, 744; Es-

tate of Pendergast, supra, 143 Cal. 135, 140; Estate

of Laurence, supra, 84 Cal.App.2d 500, 505-506),

and it is urged that the ownership of such property in-

terests in the State of California constitute[s] claimants

as persons “within the jurisdiction.” (See 51 George-

town L.Rev. 470, 484-485; see also 47 Iowa L.Rev.

105, 114-115; and cf. 28 U.Chi.L.Rev. 1, 5-10.)

Assuming, without deciding, the validity of the lat-

ter proposition, we are not persuaded that the statutory

scheme constitutes an unconstitutional discrimination

against nonresident aliens. The major contention is that

by virtue of Probate Code, section 1026 and Code of

Civil Procedure, section 1336 non-resident aliens must

“appear and demand” within five years from the date

of the decree making distribution. It is argued that

there is no valid purpose for the state’s imposing a short-

er period for nonresident aliens than for other persons

and that, even if such purpose can be divined, the

imposition of the shorter period for nonresident aliens

is irrational and contrary to logic and fairness in that,

if anything, a nonresident alien, because of his remote-

ness, should be allowed a longer period in which to

“appear and demand.”

There is no constitutional requirement of uniform

treatement. (In re Ricky H., 2 Cal.3d 513, 522 [86

Cal.Rptr. 76, 468 P.2d 204]; Whittaker v. Superior

Court, 68 Cal.2d 357, 367 [66 Cal.Rptr. 710, 438 P.

2d 358]; Bilyeu v. State Employees’ Retirement Sys-

tem, 58 Cal.2d 618, 623 [24 Cal.Rptr. 562, 375 P.2d

442].) Legislative classification is permissible when

on

made for a lawful state purpose and when the classi-

fication bears a rational relationship to that purpose.

(McGowan v. Maryland, 366 U.S. 420, 425-426 [6

L.Ed.2d 393, 399, 81 S.Ct. 1101, 1104-1105]; Roys-

ter Guano Co. v. Virginia, 253 U.S. 412, 415 [64 L.

Ed. 989, 990, 40 S.Ct. 560, 561]; Whittaker v. Su-

perior Court, supra, 68 Cal.2d 357.) “Wide discretion

is vested in the Legislature in making the classification

and every presumption is in favor of the validity of the

statute; the decision of the Legislature as to what is

a sufficient distinction to warrant the classification will

not be overthrown by the courts unless it is palpably

arbitrary. . . . [citations.] A distinction in legislation is

not arbitrary if any set of facts reasonably can be con-

ceived that would sustain it.” (Sacramento M.U. Dist. v.

P.G. & E. Co., 20 Cal.2d 684, 693 [57 P.2d 506];

Bilyeu v. State Employees’ Retirement System, supra,

58 Cal.2d 618, 623; McGowan v. Maryland, supra, 366

U.S. 420 [6 L.Ed.2d 393, 81 S.Ct. 1101]; In re Ricky

H., supra, 2 Cal.3d 513.)

We recognize that a stricter standard is applied in

testing legislation involving “suspect classifications” such

as Classifications based on race, nationality or alien-

age or involving “fundamental interests” such as the

right to vote, the righi of interstate movement and the

right to seek employment. (Purdy & Fitzpatrick v.

State of California, supra, 71 Cal.2d 566, 578-579

and authorities there cited.) However, the distinction

in the statutory scheme in question is not, strictly speak-

ing, based upon alienage. Resident aliens are treated the

same as citizens. The point of distinction is residency

as oppesed to nonresidency. Nor is the distinction based

on race or nationality. The statutory scheme applies

to all nonresident aliens alike, regardless of their race or

i E————e

esi

nationality. Neither can the interests here involved be

classified as fundamental. “ ‘Rights of succession to

the property of a deceased, whether by will or by in-

testacy, are of statutory creation, and the dead hand

rules succession only by sufferance. Nothing in the

federal constitution forbids the legislature of a state to

limit, condition or even abolish the power of testa-

mentary disposition over property within its jurisdic-

tion.’ (Irving Trust Co. v. Day (1942) 314 U.S. 556,

562 [86 L.Ed. 452, 457, 62 S.Ct. 398, 137 A.L.R.

1093].) ‘So broad is the power of the state to deter-

mine 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 succes-

sion. . . . (Estate of Zimmermann (1955) 132 Cal.

App.2d 702, 704 [283 P.2d 68]; see also Estate of

Bevilacqua (1948) 31 Cal.2d 580, 582 [191 P.2d

752]; Estate of Knutzen, supra, 31 Cal.2d 573, 578

[191 P.2d 747], and cases cited.)” (Estate of Larkin,

supra, 65 Cal.2d 60, 80-81.) There being no “suspect

classification” or “fundamental interest” involved, the

stricter standard discussed and applied in Purdy &

Fitzpatrick v. State of California, supra, is not here

applicable.

The statutory scheme of which Probate Code, sec-

tion 1026 is a part appears to us to have two pur-

poses, both of which constitute legitimate state govern-

mental concerns. Obviously, the state has a legitimate

concern that property within its borders should have

an ascertainable title within a reasonable period of time

so that it can be sold, developed and otherwise dealt

with, and one purpose of the statutory scheme is to fix

a time at which title can be definitely ascertained. A

a

second purpose would appear to be the staie’s preferring

itself over nonresident aliens, at least when they have

not appeared and demanded within the five-year pe-

riod. This, too, is a permissible exercise of the state’s

power. (Cf. United States v. Burnison, 339 U.S. 87,

95 [94 L.Ed. 675, 682-683, 70 S.Ct. 503, 508];

see also Estate of Zimmermann, supra, 132 Cal.App.

2d 702, 705.)

The distinction be*ween nonresident aliens and other

persons is raticually related to these purposes. We think

the rational connection between the distinction and the

purpose of the state’s preferring itself to a potential

heir is obvious. Citizens and resident aliens are likely

to have substantial contacts and relationships with the

state, directly or indirectly through the national gov-

ernment or other state governments, that nonresident

aliens lack. (See, discussing such contacts and rela-

tionships, Moody v. Hagen, supra, 36 N.D. 471, 486.)

In recognition of these connections and relationships, it

is not unreasonable that the state should defer its power

of escheat as to resident aliens and citizens for a longer

period than as to nonresident aliens.

These same considerations rationally connect the dis-

tinction to the other. purpose of the statutory scheme.

As already noted, the existence of unascertainable prop-

erty titles constitues a problem for and a burden to the

state. Final escheat of the property to the state re-

meves the problem and the burden. Once again, how-

ever, it is not unreasonable for the state, in defer-

ence to and recognition of its more probable relation-

ship to and connections with citizens and resident

aliens, to indulge such persons in a somewhat longer

period prior to final escheat than that accorded non-

resident aliens. j

a te eee a " ‘ °

—_ =

Claimants’ argument that, because of their remote-

ness, they should be accorded a longer period of time

than others in which to “appear and demand” is not

without logic. It must be recognized, however, that

this very remoteness serves to distinguish the non-resi-

dent alien and to support the distinction and classifica-

tion found in the legislation. Because of the remoteness

of nonresident aliens and their probable total lack of

contact with the state, it would not be unreasonable

for the state to conclude that if no non-resident heir

has appeared within fi.; years from the death of the

decedent, none is likely thereafter to be discovered.

Moreover, this argument of ciaimants is misdirected.

It is more appropriately addressed to the Legis!ature.

Courts do not sit as super-legislatures t> determine

the wisdom, desirability or propriety of statutes enacted

by the Legislature. (Griswold v. Connecticut, 321 U.S.

479, 482 [14 L.Ed. 510, 515, 85 S.Ct. 1678, 1680];

People v. Hurd, 5 Cal.App.3d 865, 877 [85 Cal.

Rpir. 7:3].) Having determined that the statutory

scheme serves a2 legitimate state purpose and that the

classification made has a rational relationship to that

purpose, the court’s function is at an end.

Claimants also urge that the statutory scheme is un-

constitutionally discriminatory as to nonresident aliens

who have “appeared and demanded” within the pre-

scribed time and, possibly, even as to citizens who

might claim to inherit through a nonresident alien heir

who had failed to “appear and demand” which the pre-

scribed time. This argument is based upon the proposi-

tion that, where a ncaresident alien heir exists but fails

to “appear and demand” within thc prescribed time, his

portion of the estate does not revert to the residue of

the estate to be distributed to other eligible heirs, but,

anffien

instead, is escheated to the state (Estate of Pender-

Hane

TRUE

gast, supra, 143 Cal. 135, 140, Estate of Meyer, 107

ee ee ee ee

See dae ie ae ee ee ee

Hl

He

A [: wilt |

AGH fii

EHH EHH Per ger

iatiety al aig ;

i TEA LEH ; itil

ta acl I

ELD PES TT prt bes ig :

il i HERE

—2o—

how that conclusion is altered by the fact that nonresi-

dent aliens are not likely to obtain actual notice of .

the proceedings. As noted in Mullane v. Central Han-

over Bank & Trust Co., 339 U.S. 306, 317 [94 L.Ed.

865, 875, 70 S.Ct. 652, 658), “. . . it has been recog-

nized that, in the case of persons missing or unknown,

empluyment of an indirect and even a probably futile

means of notification is all that the situation permits

and creates no constitutional bar to a final decree fore-

closing their rights. [Citations.)” Estate of Poder, 274

CalApp2d 786 [79 Cal. Pptr. 484], relied on by

claimants, has no applicability to the case at bench.

Lastly, claimants, relying upon Zschernig v. Miller,

supra, 389 US. 429 [19 L.Ed.2d 683, 88 S.Ct. 664],

Estate of Kraemer, supra, 276 Cal App.2d 715, and

Bethichem Steel Corp. v. Board of Commissioners,

276 Cal. App.2d 221 [80 Cal Rptr. 800], contend that

Probate Code, section 1026 constitutes an unconstitu-

tional infringement on the exclusive and plenary power

of the federal government to deal with foreign relations.

The cases relied upon by claimants do not support the

unconstitutionality of Probate Code, section 1026. Their

rule is that state legislation is invalid as an infringe-

ment upon the federal power to deal with foreign re-

lations when “it has a direct impact upon foreign re-

lations and may well adversely affect the power of the

central government to deal with those problems.” (Zsch-

ernig v. Miller, supra, 389 U.S. at p. 441 [19 L.Ed.2d

at p. 692, 88 S.Ct. at p. 671); Bethichem Steel Corp.

v. Board of Commissioners, 276 Cal App.2d at p.

229.) In both Zechernig (389 US. at pp. 434-435

{19 L.Bd.2d at pp. 688, 689, 88 S.Ct. at p. 667)])

and Bethichem (276 Cal. App.2d at p. 228) it was ex-

pressly found that the state legislation had “more than

i _eEeEeee

— =

‘some incidental or indirect effect in foreign countries,”

and . . . great potential for disruption or embarrass-

ment. . . .” Kraemer involved a statute substantially

identical to that in Zschernig, and the decision in

Kraemer was completely controlled by Zschernig.

The matter of concern to the high court in Zschernig

is revealed in the opinion as follows: “It now appears

that in this reciprocity area under inheritance statutes,

the probete courts of various States have launched in-

quiries into the type of governments that obtain in a

law have enforceable rights, whether the so-called

‘rights’ are merely dispensations turning upon the whim

or caprice of government officials, whether the repre-

sentation of consuls, ambassadors, and other repre-

senatives of foreign nations is credible or made in good

faith, whether there is in the actual administration in

the particular foreign system of law any element of con-

fiscation.” (389 U.S. at pp. 433-434 [19 L.Ed.2d at

| p. 688, 88 S.Ct. at p. 667].)

“That kind of state involvement in foreign affairs

: and international relations—matters which the Con-

stitution entrusts solely to the Federal Government—is

mot sanctioned by Clark v. Allen.” (389 US. at p.

436 [19 L.Ed.2d at p. 689, 88 S.Ct. at p. 668].)

Probate Code, section 1026 does not involve the state

im any inquiry into foreign law, administration of for-

eign law, credibility of foreign governmental officials

or any other matter condemned by Zschernig. All that

is required by Probate Code, section 1026 is the com-

putation of five years from the date of death of the

decedent. The same time period applies to all non-resi-

dent aliens alike, regardless of their country of resi-

dence, its law or its policics.

NNR R nN errr rrr NS

_ Ss

It is suggested that, since many foreign countries have

reciprocity provisions in their law similar to section

259 of the California Probate Code, the distinction be-

tween nonresident aliens and other persons inherent in

section 1026 might cause those foreign countries to

deny inheritance to all United States citizens. This

argument is spurious. By virtue of our federal system,

the laws of our 50 states are undoubtedly diverse in

respect to the right of succession by nonresident aliens.

Indeed, it appears that New Hampshire affords nonresi-

dent aliens no right to succeed to real estate at all.

(Hanafin v. McCarthy (N.H. 1948) 57 A.2d 148;

Lazarou v. Moraros (N.H. 1958) 143 A.2d 669.) It

has not heretofore been suggested that the refusal of

New Hampshire to accord such rights to nonresident

aliens or the diverse laws of other states have deterred

the finding that reciprocal rights of inheritance exist be-

tween California and the U.S.S.R. (See Estate of Lar-

kin, supra, 65 Cal.2d 60.)

It is also suggested that Probate Code, section 1026

constitutes an embarrassment to the conduct of foreign

relations in that the federal government will find it dif-

ficult to explain why an heir who “appears and de- |

mands” within the five-year period is permitted to in- |

herit while one who appears and demands shortly after |

the expiration of the five-year period is not. The burden

of such explanation is inherent in any statutorily pre-

scribed period and, in any event, presumably, such ex-

planation will cause no more embarrassment than the

explanation why a nonresident alien may inherit prop-

erty in California but not in New Hampshire.

Probate Code, section 1026 cannot be characterized

as having a “direct impact upon foreign. relations,” -nor

is it likely to “adversely affect the power of the central

— =

government to deal with” foreign relations. At n_ st, its

effect upon foreign relations is “incidental or indirect,”

and it does not unconstitutionally impinge upon the ex-

clusive and plenary power of the federal government to

deal with foreign affairs. (Zschernig v. Miller, —

389 U.S. 429 [19 L.Ed.2d 683, 88 S.Ct. 664]; Bethle-

hem Steel Corp. v. Board of Commissioners, supra,

276 Cal.App.2d 221.)

As to claimants Uliana Andreevna Gumen, Evdokia

Andreevna Lavrik, Anna Ivanovna Petievany and Vera

Ivanovna Vinichenko the judgment is reversed and the

trial court is instructed to enter judgment that the

State of California is entitled by escheat to the dis-

tribution of the interests to which those claimants

would otherwise have been entitled. Pursuant to rule

26(a) of the Rules of Court, each party shall bear his

own costs.

Mosk, J., did not participate herein.

—2+— *

EXHIBIT “B.”

Estate of Horman L.A. 29832.

DISSENTING OPINION BY PETERS, J.

I dissent. The majority opinion holds that the in-

terests of four claimants escheat to the State of Cali-

fornia because of the provisions of Probate Code sec-

tion 1026. In my opinion, under the facts of this case,

this constitutes a great injustice to these four claim-

ants.

In the first place, the state contends that section

1026 is not a statute of limitations but is part of the

substantive law of inheritance. This is a matter of

semantics. As the majority opinion points out this case

was tried and appealed at a time when section 1026

could apply but was not raised by the state. One day,

before the second trial, the state attempted to amend by

raising this section. The trial court held that section

1026 was tolled. In so holding, the trial court was clear-

ly correct. The provisions of section 1026 are subject

to tolling under proper circumstances. (Estate of Cara-

vas, 40 Cal.2d 33, 41-42; Estate of Spinosa, 117 Cal.

App.2d 364, 370-372.) This was a proper case to toll

the statute.

The Estate of Gogabashvele, 195 Cal.App.2d 503,

was decided on September 12, 1961. The Estate of

Larkin, 65 Cal.2d 60, disapproving the Gogabashvele

case, was decided on August 2, 1966. This court had

denied a hearing in the Gogabashvele case. What the

majority opinion holds is that during this five-year pe-

riod a reasonably competent attorney should pay no

attention at all to the Gogabashvele case and the de-

nial of hearing but should go to the Supreme Court

and ask that court to disapprove. This is sheer non-

nti

sense. An attorney, reasonably competent, is entitled to

rely on a district court opinion, in which a hearing by

this court has been denied, and is entitled to consider

that that opinion correctly states the law. For this rea-

Son, section 1026, which is a statute of limitations, was

tolled during this five-year period.

It is also the law that the statute of limitations is

waived when it is not pleaded. (Bliss v. Sneath, 119

Cal. 526, 528; Taylor v. Sanford, 203 Cal.App.2d 330,

345.) Here, the state not only failed to plead the pro-

visions of section 1026 at a time after the five-year

period prescribed by section 1026 had passed, but pro-

ceeded to trial and then to appeal without raising

the question. Under such circumstances there as a clear

waiver.

It should also be mentioned that this is an escheat

case. The state has no proper interest to escheat prop-

erty that properly and legally belongs to someone else.

Escheat statutes should be strictly construed.

For these reasons, I am of the opinion that the four

claimants involved in this proceeding are entitled to

their proper share of the estate.

Peters, J.

EXHIBIT “C.”

February 19, 1969 _

Department of Justice

Office of the Attorney General

State Building

Los Angeles, California 90012

Attention: Elizabeth Miller, Deputy

Slaff, Mosk & Rudman

6290 Sunset Boulevard

Hollywood, California 90028

Attention: Edward Mosk

Re: PA 1026 Estate of Horman, John P. (Deceased)

Filed: February 19, 1969.

Gentlemen:

As indicated previously, the Court is convinced by

the evidence beyond doubt that the decedent, John

Horman, was also Yakov Paviovich Gumen born in the

U.S.S.R. in 1887. Further, the Court finds that the

claimants appearing by counsel at the hearing of this

matter are the surviving heirs of the decedent, and en-

titled to inherit his estate.

As to one branch of heirs, the Attorney General has

also raised the failure to file a claim within the 5-

year period set forth by Probate Code Section 1026.

To this contention, the claimants argue broadly that

Probate Code Sections 259, 1026 and 1027 are un-

constitutional, and in addition that the 5-year period

for filing was tolled.

The Court holds that Probate Code Section 259 and

1026 are constitutional. Section 259 does not involve

California courts in the field of foreign policy. It ap

EE ee

— =

plies equally to non-resident aliens of all countries

which have reciprocity of inheritance, whether it be

Mexico or Canada, Russia or Red China. Sections 1026

(and 1027) do no doubt establish a different and short-

er period for non-resident aliens to file their claims.

However, this Court is not persuaded either (1) that

non-resident alien heirs are protected by the U. S. Con-

stitution entitling them to due process and equal pro-

tection, nor (2) that even if they should be, that the

shorter 5-year period would be a denial of due process

or equal protection.

The Court also holds, however, that the 5-year pe-

riod of Section 1026 of the Probate Code was tolled

from the date of the decision of Estate of Gogabashvele,

195 CA(2) 503, decided Sept. 12, 1961, to the date

of decision cf Estate of '.arkin, 65 C{2) 60, decided

August 2, 1966.

The effect of Gogabashvele was that Probate Code

259 prohibited any effective claim by a non-resident

alien of the U.S.S.R. to an inheritance from any Cali-

fornia estate. The California Supreme Court denied a

hearing of Gogabashvele on November 8, 1961, and it

remained the law of California for those five years.

Housing Authority vs Peters, 120 CA(2) 615: Di-

Genova vs State Board of Education, 57 C(2) 167,

178.

CCP 356 tolls the running of the 5-year period of

Probate Code 1026, if any statute stays the commence-

ment of the filing of the claim. Estate of Caravas, 40

| C(2) 33. In addition, the Supreme Court in Caravas

extended the tolling of the time to file a claim under

Probate Code 1026, beyond the express wording of

CCP 354-256, to include situations where “a plain-

~~ =

tiff has been denied access to the courts”. (40 C(2)

40). It is interesting to note that Gogabashvele was

the apparent law of California for more than 4% of the

5 years that the heirs here had to file their claims after

Mr. Horman’s death on December 25, 1961. Ob

viously, they did have the ability to file a claim in that

period (and most heirs did) but the claims would be

apparently doomed to failure by the prevailing inter-

pretation by Gogabashvele of Section 259. Under these

circumstances, it is this Court’s opinion that they were

denied access to the California Courts.

Counse! for claimants will prepare such Findings

and Judgment as may be required.

Very truly yours,

JAMES F. JUDGE

James F. Judge

JFIJ:rp

—s

Findings of Fact and Conclusions of Law.

Superior Court of the State of California, for the

; County of Orange.

In the Matter of the Estate of John P. Horman, etc.,

et al., beceased. No. PA 1026.

Filed: March 17, 1969.

The above entitled matter came on regularly for re-

trial aiter reversal of previous judgment in the Dis-

trict Court of Appeal (265 ACA 905) on the 4th and

Sth days of February, 1969 before the Honorable

JAMES F. JUDGE presiding in Department 11 of the

above entitled court. The matter was submitted on

February 5, 1969 and the court filed its intention to

give judgment on February 19, 1969 together with a

letter addressed to all counsel setting forth the basis of

said decision. SLAFF, MOSK & RUDMAN by Ed-

ward Mosk and Leon Goldin appeared as counsel for

claimants and THOMAS LYNCH, Attorney General

of the State of California, by Elizabeth Miller, Deputy

Attorney General, appeared as counsel for respondent

and petitioner, the State of California. The Court having

heard the testimony and having examined the proofs

offered by the respective parties and the cause having

been submitted for decision and the court being fully

advised in the premises and having determined that all

notices required by law were given, makes its Fi .dings

of Fact as follows:

0 GL FNM A a NA Ce ee AOR rem Oe .

IT IS TRUE THAT:

1. JOHN P. HORMAN died intestate on Decem-

ber 25, 1961 in the County of Orange, State of Califor-

nia leaving an estate in said County consisting of real

and personal property.

= =

2. Letters of Adrrinistration were duly issued to the

Public Administrator of Orange County on January

12, 1962.

3. Notice of Creditors has been duly given, pub

lished and filed as required by law.

4. Decedent left no surviving spouse.

5. John Horman was born JAKOB (YAKOB)

PAVLOVICH GUMEN.

6. John Horman is survived by his sister VASILISA

(WASILISA) PAVLOVNA MALENKO.

7. John Horman’s brother MATVEI PAVLOVICH

GUMEN predeceased him leaving as his heirs his chil-

dren, MARFA MATVEEVNA BATRAK, SER-

GEI MATVEEVICH GUMEN, ANNA MATVEEVNA

SISOVEA (SYSOEVA) and the children of his daugh-

ter NINA MATVEEVA BELOTZKAYA, namely

ELENA VASILIEVA (VASILYEVNA) DEREVI-

ANKO (DEREVYANKO), NADEZHDA AND-

REEVNA BELOTSKY (BELOTZKAYA), NIKOLAI

(NIKOLAY) ANDREEVICH BFLOTZKY (BEL-

OTSKAYA), LEONID ANDREEVICH BELOTSKY

and VALERIY SERAFIMOVICH BELOTSKY (BEL-

OTZKIY).

8. John Horman’s brother SVIRID PAVLOVICH

GUMEN predeceased him leaving as his heirs his chil-

dren PETR SVIRIDOVICH GUMEN, AGRAFENA

SVIRIDOVNA KUZETZOVA, NINA SVIRIDOVNA

GUMEN, VERA SPIRIDONOVNA (SVIRIDOVNA)

PANASUK (PANASIUK), ELIZAVETA SPIRIDON-

OVNA (SPIRIDOVNA) KULAKOVA, NADEZHDA

SVIRDOVNA TROTZENKO and the children of his

daughter ANNA SVIRIDOVNA BASAY., namely

ALLA ALEKSEEVNA BASAY, NINA ALEKSEE-

a

VNA DOROZHKIN (DOROZHKINA), GENADY

(GENNADY) ALEKSEEVICH BASAY and ALEK-

SANDER (ALEKSANDR) ALEKSFEVICH BASAY.

9. John Horman’s half-brother ANDREI ALESK-

SEEVICH LAVRIK predeceased John Horman leaving

as his heirs his children STEPAN ANDREEVICH

LAVRIK, ULIANA ANDREEVNA GUMAN, EV-

DOKIA ANDREEVNA LAVRIK and the children of

his son IVAN LAVRIK, namely ANNA (GANNA)

IVANOVNA PETLEVANY (PETLEVANYA) and

VERA IVANOVNA (WINICHENKO) VINICHEN-

KO.

10. All of said heirs of JOHN HORMAN are resi-

dents and citizens of the Union of Soviet Socialists

Republics. Reciprocal rights of inheritance exist be-

tween the United States and the USSR as set forth in

the decision cf the Supreme Court of the State of Cali-

fornia in Estate of Larkin, 65 C2d 60, 416 P2d 273.

11. Claimants ULIANA GUMEN, EVDOKIA

LAVRIK, ANNA PETLEVANY and VERA VINI-

CHENKO did not appear in this action until February

23, 1967. It is true that said claimants had no effec-

tive manner in which to appear herein during the pe-

riod of time commencing with the opening of the within

estate and ending upon their appearance herein in that

between November 8, 1961 when hearing was denied

by the Supreme Court of California in Estate of Gogo-

bashvele, 195 CA2d 503, and August 2, 1966 when

the Supreme Court changed the law of California in

Estate of Larkin, 65 C2d 60, the law of the State of

California prevented alien heirs residing in the USSR,

irrespective of the merits of their claims in California

estates, from inheriting their shares of California es-

=

tates by reason of the operation of Probate Code 259

as interpreted in Estate of Gogobashvele. That to have

required said claimants to have appeared herein under

such state of law would have required them to perform

an idie act in that said claimants, during such period,

were unable to obtain any effective relief in the courts

of this state, and to that extent the courts of this state

were effectively closed to them.

12. No other person appeared to make any claim

of heirship in this estate and the court finds that there

are no heirs other than as set forth in these Findings of

Fact and Conclusions of Law.

IT IS NOT TRUE that the State of California is en-

titled to distribution of the estate as escheated property

by reason of its claim that there are no heirs entitled to

take.

WHEREFORE, from the foregoing facts the court

makes the following Conclusions of Law:

CONCLUSIONS OF LAW

1. VASILISA (WASILISA) PAVLOVNA MaA-

LENKO as the sister of the decedent is entitled to dis-

ribution of one-fourth (%4) of the estate of the de-

cedent.

2. That the children of MATVEI PAVLOVICH

GUMEN, the brother of the decedent, are entitled to

share one-quarter (44) of the estate of the decedent

in the following proportions:

A. MARFA MATVEEVNA BATRAK, one-

sixteenth ‘1/16)

B. SERGEI MATVEEVICH GUMEN, one-

sixteenth (1/16)

C. ANNA MATVEEVNA SISOEVA (SY-

SOEVA), one-sixteenth (1/16)

= =

D. ELENA VASILIEVNA (VASILYEVNA)

DEREVIANKO (DEREVYANKO), one-eightieth

(1/80)

E. NADEZHDA ANDREEVNA BELOTSKY

(BELOTZKAYA), one-eightieth (1/80)

NIKOLAI (NIKOLAY) ANDREEVICH BEL-

OTZKY (BELOTSKAYA), one-eightieth (1/80)

G. LEONID ANDREEVICH BELOTSKY,

one-eightieth (1/80)

H. VALERITY SERAFIMOVICH BELOT-

SKY (BELOTZKIY), one-eightieth (1/80)

3. That the children of SVIRID PAVLOVICH

GUMEN, the brother of the decedent, are entitled to

share one-quarter (1%) of the estate of the decedent in

the following proportions:

A. PETR SVIRIDOVICH GUMEN, one

twenty-eighth (1/28)

B. AGRAFENA SVIRIDOVNA KUZENT-

ZOVA, one twenty-eighth (1/28)

C. NINA SVIRIDOVNA GUMEN, one

twenty-eighth (1/28)

D. VERA SPIRIDOVNA (SVIRIDOVVNA)

PANASUK (PANASTUK), one twenty-eighth

(1/28)

E. ELIZAVETA SPIRIDONOVNA (SPIRI-

DOVNA) KULAKOVA, one twenty-cighth (1/

28)

F. NADEZHDA SVIRIDOVNA TROTZEN-

KO, one twenty-eighth (1/28)

G. ALLA ALEKSEEVNA BASAY, one one-

hundred and twelfth (1/112)

=

H. NINA ALEKSEEVNA DOROZHKIN

(DOROZHKINA), one one-hundredth and twe'fth

(1/112)

I. GENADY (GENNADY) ALEKSEEVICH

BASAY, one one-hundreth and twelfth (1/112)

J. ALEKSANDER (ALEKSANDR) ALEK-

SEEVICH BASAY, one one-hundredth and

twelfth (1/112)

4. The children of ANDREI ALESEEVICH LA-

VRIK, the half-brother of the decedent, are entitled

to share one-quarter (4%) of the estate of the decedent

in the following proportions:

A. STEPAN ANDREEVICH LAVRIK, one-

sixteenth (1/16)

B. ULIANA ANDREEVNA GUMEN, one-

sixteenth (1/16)

C. EVDOKIA ANDREEVNA LAVRIK, one-

sixteenth (1/16)

D. ANNA (GANNA) IVANOVNA PETLE-

VANY (PETLEVANYA), one thirty-second

(1/32)

E. VERA IVANOVNA (WINICHENKO)

VINICHENKO, one thirty-second (1/32).

5. Probate Code 1026 requiring alien heirs to claim

within five years of date of death of the decedent was

tolled between September 12, 1961 and August 2,

1966; all heirs set forth herein claimed their respective

shares of the estate in compliance with the requirements

of Probate Code 1026.

6. All Findings of Fact herein expressed as Con-

clusions of Law are hereby expressly adopted as Find-

ings of Fact as though set forth in full herein; all Con-

oe

clusions of Law herein expressed as Findings of Fact

are hereby expressly adopted as Conclusions of Law

as though set forth in full herein.

A Decree is hereby ordered to be entered accord-

ingly.

DATED: This 17 day of March, 1969.

/S/ James F. Judge

JAMES F. JUDGE

Judge of the above entitled court

a

APPENDIX “D”.

United States Constitution Fourteenth Amendment.

ARTICLE [XIV]

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State where-

in they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

United States Constitution

Article 1, Section 8.

Section 8. The Congress shall have Power .. .

To regulate Commerce with foreign Nations, . . .

California Probate Code

Sections 1026 and 1027.

§1026. Nonresident alien succeeding to property; ap-

pearance and demand; escheat

A nonresident alien who becomes entitled io property

by succession must appear and demand the property

within five years from the time of succession; otherwise,

his rights are barred and the property shall be disposed

of as escheated property. (Added Stats. 1933, c. 969,

p. 2495 § 13.)

§ 1027. Time for application for distribution; distribu-

tion to state; claims Application; time; notice,

hearing; undistributed portion.

Executors or administrators, public or otherwise,

must apply for distribution of an estate at the time of

—

filing a final account. Notice of such application must

be given in the manner provided in Section 1200 of the

Probate Code. If the court, at the time set for the

hearing of the final account, or such time thereafter to

which the matter may be continued, does not distribute

the entire valance of the estaie remaining for distribu-

tion to known heirs, devisees or legatees entitled to

succeed thereto, it must distribute to the State of Cali-

fornia that portion of such estate not distributed to

such known heirs, devisees or legatees. Insofar as prac-

tical, any real property or tangible personal property

shall be converted to money prior to transmittal to the

State.

Service on state controller.

Whenever it appears that the estate or any portion

thereof is to be distributed to the State of California

because there are no known heirs or that the estate or

any portion thereof is to be distributed to heirs, de-

visees or legatees whose whereabouts are unknown, the

executor or administrator must serve the State Con-

troller, personally or by mail, with a copy of the pe-

tition for distribution, together with notice of the hear-

ing thereon, specifying the date of such hearing, and a

copy of the latest account filed with the court, at least

30 days prior to the date of such hearing.

Title of state.

If the court distributes the estate or any portion

thereof to the State of California, and the distributing

clause contains words otherwise creating a trust in favor

of certain unknown or unidentified persons as a class,

such distribution shall vest in the State of California

both legal and equitable title to the property so dis-

tributed; saving, however, the right of claimants to ap-

_

pear and claim the estate or any portion thereof, as

in this section provided.

Delivery to state treasurer and state controller.

Upon the rendition of a decree of distribution, any

money distributed to the State of California shall forth-

with be delivered to the State Treasurer by the execu-

tor or administratcr, and all other persona’ property

so distributed shall forthwith be delivered to the State

Controller for deposit in the State Treasury. .

Certified copy of decree.

A certified copy of the decree of distribution and of

any court orders amending the same must be delivered

to the State Controller by the executor or administra-

tor at the time of making any remittance in connection

with an estate.

No deposit in county treasury.

No deposit of property in an estate shall be made

in the county treasury by any executor or administra-

tor, public or otherwise, if the estate has previously

been distributed to the State of California pursuant to

this section, but such estate shall be transmitted forth-

with to the State Treasurer or State Controller as pro-

vided in this section.

Limitation of claims. e

The property so distributed shall 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 claim the estate or any part

thereof in the manner provided by Title 10 (com-

mencing with Section 1300) of Part 3 of the Code of

Civil Procedure. Rights of nonresident aliens shall be

governed by the provisions of Section 1026 of this code.

=

Failure on claims.

Any person who does not appear and claim, as here-

in required, shall be forever barred, and such property,

or so much thereof as is not claimed, shall vest ab-

solutely in the state.

Code of Civil Procedure Section 1430.

§ 1430. Permanent escheat; time; rights of persons

under disability; presumption.

Upon the expiration of five years after the date of

entry of judgment in any proceeding had under this

chapter, or upon the expiration of five years after com-

pletion of notice by publication in an escheat action

taken under the provisions of Section 1415, the prop-

erty covered by such proceeding or action is permanent-

ly escheated to the State; saving however to infants,

and persons of unsound mind, the right to appear and

claim such property as provided in this title; but it shall

be presumed that there are no such infants nor per-

sons of unsound mind who are or will be entitled to.

claim such property unless and until they appear and

claim such property as provided in this title; provided,

however, such presumption shall be conclusive in favor

of any purchaser in good faith and for a valuable con-

sideration from the State and everyone subsequently

claiming under him, saving however, to infants and

persons of unsound mind the right of recourse to the

proceeds of any sale or other disposition of any such |

property by the State and as herein provided. (Added

Stats.1951, c. 1708 p. 3951, § 5. As amended Stats.

1951, c. 1738, p. 4148, § 3.)