# Petition for Writ of Certiorari — Gumen v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0164%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1972 - **Citation:** 404 U.S. 1015 ## Text 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 » & 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.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_0164%3A1. Public record. Not legal advice.