IN RE: GIORDANO'S ESTATE.

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District Court of Appeal, Fourth District, California.

IN RE: GIORDANO'S ESTATE. CLARK, Atty. Gen. of U. S. v. FINO.

Civ. 3596.

Decided: April 08, 1948

David L. Bazelon, Asst. Atty. Gen., James M. Carter, U. S. Atty., and Clyde C. Downing, Asst. U. S. Atty., both of Los Angeles, M. S. Isenbergh, Sp. Asst. to Atty.Gen., and David E. Feller, for appellant. H. E. Dwelle and Dorsey K. Dwelle, both of Fresno, and J. George Aye, Jr. and James W. Shippe, for respondent.

This is an appeal by the Attorney General of the United States, as substituted successor of the Alien Property Custodian, from a decree of distribution, distributing all of the property of the estate of Giorgio Giordano, who died intestate Jan. 17, 1945, to Anna Maria Fino, a sister of deceased, who is a citizen and resident of the United States, to the exclusion of Maria Giordano, his mother, who at all material times was an alien residing in Italy. It is not questioned that the Alien Property Custodian, under Federal Statutes, and under a Vesting Order made on November 2, 1945, has properly appeared in these proceedings as successor to any interest of Maria Giordano in the property of the estate; that he requested that the interest of the mother be vested in him on distribution.

There were several brothers and sisters of deceased who were aliens, living in Italy, but as he died intestate, without surviving father, spouse, or issue, it is not necessary to mention them further, as the mother, were she a resident of the United States, would have been his sole heir at law entitled to inherit his property. (Sec. 225, Probate Code.)

The case turns on the effect to be given sectios 259, 259.1 and 259.2 of the Probate Code (Stats.1941, Ch. 895) which remained in effect until September 15, 1945, when section 259 was amended and the other sections were repealed. (Stats.1945, Ch. 1160.) Section 259 was again amended and the other two sections were reenacted so that the amended section and the reenacted sections went into effect on September 19, 1947 (Stats.1947, Ch. 1042), in much the same form as they were prior to the 1945 changes.

Section 259.2 has no important bearing on this case so no further attention need be given it. The two other sections, as originally enacted, provided as follows:

Sec. 259. ‘The rights of aliens not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United in the United States or its territories money originating from the estates of persons bying within such foreign countries.’

Sec. 259.1. ‘The burden shall be upon such nonresident aliens to establish the fact of existence of the reciprocal right set forth in Section 259.’

The important portion of the 1945 amendment of Section 259 reads as follows:

‘It shall be presumed that such reciprocal rights exist and this presumption shall be conclusive unless prior to the hearing on any petition for distribution of all or a portion of such property to an alien heir, devisee or legatee not residing within the United States or its territories a petition is filed by any person interested in the estate requesting the court to find that either one or both of such reciprocal rights does not or do not exist as to the country of which such alien heir, devisee or legatee is resident. Upon the hearing of such petition the burden of establishing the nonexistence of such reciprocal right or rights shall be upon the petitioner. Notice of such hearing shall be given in the manner provided by Section 1200 of this code.’

It thus appears that at the time of the death of deceased, and up to September 15, 1945, the burden of proving such reciprocal rights rested on the foreign alien heir, or in this case, the Alien Property Custodian who represented her. Commencing on September 15, 1945, and to September 19, 1947, the burden of proof rested on Anna Maria Fino. The enactments effective on September 19, 1947, returned the burden of proving reciprocal rights to the foreign alien heir, or, here, the Alien Property Custodian. Neither of the parties established such reciprocal rights in the court below.

Deceased died on January 17, 1945, during the time the sections in their original form were in effect. The administratrix qualified on February 6, 1945. The final account and petition for distribution were filed on October 27, 1945, after the 1945 amendment, and the repeal of Section 259.1 became effective. The decree of distribution distributing the property of the estate to Anna Maria Fino was filed on November 1, 1946. The transcript on appeal was filed on July 10, 1947. The 1947 amendment of Section 259 and the reenactment of Section 259.1 of the Probate Code became effective while this appeal was pending and before its decision.

Certain of the arguments of respondent in support of the decree of distribution may be summarized as follows:

That under both the civil law and the common law, aliens could not take property by descent or operation of law; that under the provisions of Section 671 of the Civil Code, ‘Any person, whether citizen or alien, may take, hold, and dispose of property real or personal, within this state’; that under Sections 259 and 259.1 of the Probate Code as in force at the time of the death of deceased, Anna Maria Fino would take the entire estate unless appellant, as representative of Maria Giordano, the nonresident alien, was successful in sustaining the burden of proving reciprocal rights of inheritance in Italy; that heirs at law of a deceased are determined by conditions existing at the time of death and the rights of those heirs are then fixed and become vested at that time and may not be divested by subsequent legislative enactment, citing In re Estate of Benvenuto, 183 Cal. 382, 191 P. 678; In re Estate of Michels, 18 Cal.App.2d 201, 63 P.2d 333, and Johns v.Scobie, 12 Cal.2d 618, 86 P.2d 820, 121 A.L.R. 1404.

Respondent further argues that while the right of inheritance is wholly statutory and within the control of the legislature, the right to inherit the property of her borther vested in her on his death and that the legislature cannot divest her of that inheritance by subsequent legislative enactment; that statutes in force at the time of death control the disposition of the property of an estate and cannot be changed after the vesting of the property at that time, citing In re Estate of Putnam, 219 Cal. 608, 28 P.2d 27; McKay v. Lauriston, 204 Cal. 557, 269 P. 519; In re Estate of Phillips, 203 Cal. 106, 263 P. 1017, and In re Estate of Wellings, 197 Cal. 189, 240 P. 21.

These arguments may be summarized by stating that it is the contention of respondent that as the inheritance from her brother vested in her under the law in force at the time of his death, there being no evidence of reciprocal rights in Italy, this property could not be taken from her by the legislature acting after the vesting; that as the amendment of 1945 would have the effect of depriving her of property, title to which had already vested in her, it cannot be given force and effect in this case. The sum total of these arguments is that the amendments destroyed a vested right in property and were therefore changes in the substantive law and were not merely changes in procedure. There is dicta in Re Estate of Thramm, 80 Cal.App.2d 756, 183 P.2d 97, that supports this argument.

Appellant concedes that if the 1945 amendment is a change in the substantive law, and if given effect here, it would deprive respondent of property that had already vested in her, it cannot be given any force as it must be applied prospectively as affecting rights in property arising after its effective date. However, he argues that as the 1945 amendments became effective before the final account and petition for distribution were filed, and as the only change important here was to shift the burden of proof from one party to the other, they changed only the procedure and must be given effect in the hearing subsequently had on the petition for distribution and as respondent failed to meet the burden of proof placed on her by the 1945 amendment, the presumption in appellant's favor therein contained became conclusive and that the decree of distribution made contrary to that presumption must be reversed. (Sour v. Superior Court, 1 Cal.2d 542, 36 P.2d 373; Heron v. Bray, 122 Cal.App. 79, 9 P.2d 513.) He argues, and correctly so, that no litigant has any vested right in any matter of procedure, and that the fact that a change in procedure may make proof of the rights of one party more difficult, or proof by another party less onerous, can be of no avail to either. (San Bernardino County v. Ind. Acc. Comm., 217 Cal. 618, 20 P.2d 673; Arques v.National Superior Co., 67 Cal.App.2d 763, 155 P.2d 643.) Appellant points to decisions in which it has been held that changes in a statute regulating the burden of proof are to be applied as changes in procedure only. (MacArthur v. Ind. Acc. Comm., 220 Cal. 142, 29 P.2d 846; Sackheim v. Pigueron, 215 N.Y. 62 109 N.E. 109; Southern Indiana Ry. Co. v. Peyton, 157 Ind. 690, 61 N.E. 722; Wallace v. Western N. C. R. Co., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 106 Miss. 672, 64 Co. 461; Id., 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279.)

A weakness is apparent in the argument of respondent to the effect that title to the estate property absolutely and finally vested in her at the time of death of deceased. Under the provisions of Section 225 of the Probate Code the property of the estate would have vested in Maria Giordano, the mother of deceased, except for the provisions of Section 259 and 259.1 of the Probate Code. It was not until after the hearing involved here, and the failure of either party to introduce any evidence showing that there were reciprocal rights of inheritance in Italy, that the right of either deceased's mother or sister to inherit became established. While it might be true that the vesting occurred at the time of the death of deceased, the individual in whom the property vested, whether the sister or the mother, could not be determined until after the hearing. Therefore we incline to the view that the amendment of 1945 which became effective before the petition for distribution was filed did not deprive respondent of a vested and determined property right and was more a change in procedure than a change in substantive law.

While we incline to this view it does not reguire a reversal of the decree of distribution. Counsel for both parties agree that if the sections as adopted in 1941 and in force at the time of the death of deceased had not been amended the decree of distribution awarding the property to respondent would have been correct as there was no proof of the existence of reciprocal rights of inheritance in Italy. Under the 1947 amendment which is now in effect the same result follows as now the burden of proving such reciprocal rights of inheritance is placed on the nonresident alien where it was prior to the enactment of the 1945 amendment.

It is now well settled that the repeal of a statute creating a right unknown to the common law destroys a right of action based upon it. This is true though the repeal became effective after judgment in the trial court if it was effective before the decision of the case on appeal. The same should be true of an amendment of a statute because the amendment repeals the portion of the amended statute repugnant to the final amendment. In Pacific Gas & Electric Co. v. State of California, 214 Cal. 369, 6 P.2d 78, 80, the court quoted with approval from People v. Bank of San Luis Obispo, 159 Cal. 65, 112 P. 866, 37 L.R.A.,N.S., 934, Ann.Cas.1912B, 1148, as follows:

“It is, in the general, true that the province of an appellate court is only to inquire whether a judgment, when rendered, was erroneous or not; but if, subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed or its obligation denied. * * * In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.”

The case of First National Bank v. Henderson, 101 Cal. 307, 35 P. 899, strongly supports this rule and its facts are somewhat analagous to those of the instant case. See also Lemon v. Los Angeles Terminal Ry. Co., 38 Cal.App.2d 659, 102 P.2d 387; California Employment Commission v. Arrow Mill Co., 45 Cal.App.2d 668, 114 P.2d 727.

As the right of inheritance is statutory and not a creature of the common law, as no right in the property of the estate could have been finally determined as being in either the sister or the mother prior to a determination fo the existence or nonexistence of reciprocal rights of inheritance in Italy and as sections 259 and 259.1 of the Probate Code and the amendments thereto important here, merely fixed the burden of proving those rights on one or the other party and were thus procedural in nature we must be governed by the law as it exists today. That law now places the burden of establishing reciprocal rights of inheritance on appellant where it was at the time of death of deceased. As appellant failed to maintain that burden of proof and as no evidence was introduced tending to indicate the existence of reciprocal rights of inheritance in Italy respondent is entitled to the property of the estate.

The judgment is affirmed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.