IN RE: ARBULICH'S ESTATE. ARBULICH v. ARBULICH.*
Charles J. Arbulich, the decedent, was born in the country now known as Yugoslavia, came to the United States, became an American citizen, died in San Francisco on March 21, 1947, and left an estate consisting of real and personal property. By his will he disinherited his American citizen brother, the respondent Thomas S. Arbulich, and left his entire estate to his father, if he should survive the testator, and if not then to his brother, the appellant, John Arbulich, Jr., a Yugoslav citizen and resident. The father predeceased Charles. Both Thomas and John (John through the Consul General of Yugoslavia) filed petitions to determine heirship, it being contended by Thomas that John was ineligible to take under the will for the reason that Yugoslavia, so it is claimed, does not grant reciprocal rights of inheritance to American citizens inheriting from citizens of Yugoslavia within the meaning of section 259 of the Probate Code. John claimed such reciprocal rights existed. A petition by one claiming to be the widow of Charles was also filed, but the issues presented by that proceeding have been settled and are not here involved.
After a trial which spread over many months because of numerous continuances granted to permit the parties to secure and to present evidence on the basic issue of reciprocity, the trial court determined that reciprocity did not exist, that John was therefore ineligible to take under the will, and that the entire estate should be distributed to Thomas as the sole remaining heir at law. John, through the Consul General, appeals.
Before discussing the evidence which, except for the testimony of the Yugoslav ambassador to the United States, is almost entirely documentary in character, some reference should be made to the general law governing such proceedings. It should be pointed out that section 259 of the Probate Code is not merely a procedural statute, but is part of the substantive law of succession. That being so, the statute as it read at the time of the death of the testator desiring to leave property to an alien governs. In re Estate of Giordano, 85 Cal.App.2d 588, 193 P.2d 771. Charles died March 21, 1947.
Section 259 as it read in March of 1947, Stats. of 1945, p. 2208, chap. 1160, and until its amendment in September of that year, then provided: ‘The right of aliens not residing within the United States or its territories to take real property 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 property upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are residents and the right of aliens not residing in the United States or its territories to take personal property 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 personal property upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are residents. 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.’
Thus, as the section then read, there was a statutory rebuttable presumption that reciprocity existed, and the one contending there was a lack of reciprocity had the burden of proving that fact.
The cases have also established the law to be that while the interpretation of foreign statutes and of treaties, when they alone are before the court, is a question of law, the question of how such statutes and treaties have been interpreted and applied by a foreign country is a question of fact. The appellate courts will not disturb a finding of reciprocity or of non-reciprocity that is supported by a presumption or is based on conflicting evidence. In re Estate of Schluttig, 36 Cal.2d 416, 224 P.2d 695—finding of non-reciprocity with Germany on April 3, 1945, affirmed; In re Estate of Miller, 104 Cal.App.2d 1, 230 P.2d 667, finding of reciprocity with Germany as of April 22, 1942, affirmed; In re Estate of Blak, 65 Cal.App.2d 232, 150 P.2d 567, a finding of reciprocity with the Netherlands, date of death not disclosed, but prior to 1942 and during German occupation of Holland, affirmed; In re Estate of Giordano, 85 Cal.App.2d 588, 193 P.2d 771, a finding of non-reciprocity with Italy as of January 17, 1945, affirmed; In re Estate of Reihs, 102 Cal.App.2d 260, 227 P.2d 564, a finding of reciprocity with Germany as of November 24, 1946, affirmed; In re Estate of Kennedy, 106 Cal.App.2d 621, 235 P.2d 837, a finding of reciprocity with Romania as of March 15, 1949, affirmed. In all of these cases it was held that where the finding of reciprocity or non-reciprocity was based on conflicting evidence or supported by a rebuttable presumption it would not be disturbed by an appellate court, even where, as to the same country, one trial court had found reciprocity to the exist and another that it did not. Compare the Schluttig, Miller and Reihs cases, cited supra.
The case of In re Estate of Kennedy, 106 Cal.App.2d 621, 235 P.2d 837, sets forth several other rules that are here applicable. It held that the facts that a limited nationalization or socialization of property and industry had taken place in Romania, or that that country was communistic in nature and dominated by Russia, did not compel a finding of non-reciprocity. It also held that once a statute enacted prior to the death of the testator involved is proved to exist, a presumption that such statute continued to exist arises under the provisions of section 1963, subd. 32, of the Code of Civil Procedure, and that once such a statute is proved to exist, it will be presumed that the terms of such statute have been carried out under the provisions of section 1963, subds. 15 and 33, of the Code of Civil Procedure.
The cases of In re Estate of Miller, 104 Cal.App.2d 1, 230 P.2d 667, and In re Estate of Blak, 65 Cal.App.2d 232, 150 P.2d 567, held that the fact that the property inherited in a foreign country could not be immediately transferred to the United States, due to the war or to foreign exchange regulations, was not relevant on the issue of reciprocity.
Thus, in the instant case, appellant was entitled, in the trial court, to the rebuttable presumption that reciprocity existed. If he could prove the existence of a treaty or statute of Yugoslavia enacted prior to March 21, 1947, granting reciprocity, he was then entitled to the rebuttable presumptions that that law continued to exist, and that such law was and would be enforced according to its terms. Since the trial court has found against these presumptions and against reciprocity, the question is whether, keeping in mind the burden of proof and these presumptions, there is any substantial evidence or reasonable inferences therefrom to support the finding.
Although the burden was on respondent to prove non-reciprocity, the appellant agreed to present his evidence that reciprocity existed before respondent offered his evidence.
The appellant first introduced a treaty of 1881 between Serbia and the United States, 22 Stat. 963, and the certificate of then Secretary of State George C. Marshall dated May 21, 1948, duly authenticated, certifying that such treaty is still in force and effect between Yugoslavia and the United States. That certificate traces the history of the Kingdom of Serbia into the Kingdom of the Serbs, Croats and Slovenes, into the Kingdom of Yugoslavia, and finally, in November of 1945, into the Federal People's Republic of Yugoslavia, and certifies that by agreement between the two countries the Serbian treaty of 1881 was still in full force and effect. The final clause of the certificate states ‘that the said treaty remains in full force and effect between the United States of America and Yugoslavia.’
Article II of that treaty reads as follows:
‘In all that concerns the right of acquiring, possessing or disposing of every kind of property, real or personal, citizens of the United States in Serbia and Serbian subjects in the United States, shall enjoy the rights which the respective laws grant or shall grant in each of these states to the subjects of the most favored nation.
‘Within these limits, and under the same conditions as the subjects of the most favored nation, they shall be at liberty to acquire and dispose of such property, whether by purchase, sale, donation, exchange, marriage contract, testament, inheritance, or in any other manner whatever, without being subject to any taxes, imposts or charges whatever, other or higher than those which are or shall be levied on natives or on the subjects of the most favored state.
‘They shall likewise be at liberty to export freely the proceeds of the sale of their property, and their goods in general, without being subjected to pay any other or higher duties than those payable under similar circumstances by natives or by the subjects of the most favored state.’
There was next introduced the certificate of Sava N. Kosanovic, Ambassador to the United States for Yugoslavia, duly authenticated by our State Department, and dated May 15, 1948, concerning the law of Yugoslavia with respect to the estates of decedents. The certificate contains the categorical assertion that reciprocity exists within the meaning of section 259 of the Probate Code. The certificate states that the Ambassador knows of his own knowledge that the Constitution and laws of Yugoslavia ‘accord to citizens of the United States of America, including citizens of the State of California, though not residing in * * * Yugoslavia, the reciprocal rights of inheritance prescribed and referred to in Sections 259 * * * of the Probate Code of the State of California. The Constitution and laws of the Federal Peoples Republic of Yugoslavia permit and grant to citizens of the United States of America, including citizens of the State of California, though not resident in * * * Yugoslavia rights equal to those accorded to Yugoslav citizens residing in * * * Yugoslavia to take by will or succession any and all property located within * * * Yugoslavia,’ subject to the Nationalization Law of December 5, 1946, as amended April 28, 1948. The certificate then states that this Nationalization Law as amended provides for ‘the nationalization of real property owned by foreigners, except immovable property of farmers tilling their own land, buildings serving in the main as the homes of the owners thereof,’ but, under the provisions of that Act ‘all the owners of nationalized property, are entitled to full compensation for such property.’
The certificate then goes on to state that by agreement with the United States ‘all treaties previously concluded with the former Kingdom of Serbia * * * are in full force and effect’ between the United States and Yugoslavia. The certificate then quotes Article II of the United States and Serbia treaty of 1881, above quoted, and then certifies that the government of Yugoslavia ‘has at all times construed and does now construe and respect said treaty as providing for and guaranteeing complete reciprocal rights of inheritance between the United States of America and * * * Yugoslavia so that citizens of the United States of America, including citizens of the State of California, residing in the United States or wherever they may reside have the full and unabridged right to inherit and to receive and have paid to them all inheritances, by last will and testament or by succession, all money and property, real and personal, bequeathed, devised or due to them by the laws of the succession situated in the Federal Peoples Republic of Yugoslavia from the estates of deceased citizens' of Yugoslavia, subject only to the Nationalization Law as amended.
A supplemental certificate of the Ambassador, duly authenticated and dated October 14, 1948, was also introduced. The Ambassador there certifies that the rights of foreigners to inherit property in Yugoslavia as set forth in the original certificate has been the law since 1918 and up to the present time, and that there has been no change in such laws and none is contemplated. It is certified that ‘it has always been the fixed policy of my Government and its predecessors to fully protect, preserve and assure the rights of all foreigners and residents outside of Yugoslavia to enjoy, take and receive full rights of inheritance of property, real, personal, or mixed, without discrimination, in the same manner and to the same extent as residents and nationals of Yugoslavia’ subject only to the Nationalization Laws. It is further certified, when moneys are due and payable to Yugoslav residents from United States decedents as a result of inheritance, that the recipients in Yugoslavia receive such moneys in Yugoslavia at the official rate of exchange free of any imposts, levies or taxes, ‘and they have free and unabridged use and enjoyment thereof’ subject only to such limitations as are imposed on Yugoslav nationals for the protection of the state. This supplemental certificate also notes that on July 19, 1948, the United States and Yugoslavia negotiated a claims agreement by the terms of which the Yugoslav government engages to authorize Yugoslav nationals indebted to anyone in the United States ‘to meet such indebtedness on maturity.’ By the terms of that agreement Yugoslavia agreed to pay $17,000,000 to the United States for American property nationalized in Yugoslavia, to be distributed by the United States among the rightful claimants.
In addition to these two certificates, Ambassador Kosanovic was called as a witness by appellant. He testified that he was not only the Yugoslav ambassador to the United States, but also a minister in the cabinet and a member of the Presidium, the highest authority in his country. He presented a copy of the Constitution of Yugoslavia adopted in 1946 which, according to his testimony and supported by an examination of the document, makes no discrimination, so far as the right to enjoy and inherit property is concerned, between Yugoslav citizens and foreigners. The Constitution provides that the ‘inheritance of private property is guaranteed. The right of inheritance is regulated by law.’ In addition, the Ambassador testified that there was no discrimination as against for eigners in connection with the right of inheritance, and that if inheritance taxes are paid in the United States on a bequest to a Yugoslav citizen, that person will receive the inheritance without further tax. He several times reiterated his statement that there were no laws or rules or regulations in any way restricting the right of an American to receive and to enjoy his inheritance in Yugoslavia. On cross-examination he testified that his country had exchange controls, and that under Yugoslav law anyone in the country receiving foreign exchange could be compelled to sell it to the state bank at regular exchange rates. He testified that there were no big estates in Yugoslavia, that the land formerly owned by big landowners had been nationalized, and that the maximum ownership of one individual is twenty-five hectares,1 but that former owners, including foreigners, were compensated. He also testified that money received by inheritance by Yugoslav citizens could be fully owned and enjoyed by such citizens.
Appellant, then, over the objection that it was incompetent, irrelevant and immaterial, introduced as an official document an official communication between the Yugoslav Ministry of Justice and the Yugoslav Ministry of Labor dealing with the reciprocity question. This document states that under Yugoslav law ‘the courts extend protection to all individuals in the exercise of their [inheritance] rights, regardless of whether they be Yugoslav nationals or foreign nationals.’ It also states that under the 1881 treaty, which Yugoslavia recognizes, American citizens inheriting from Yugoslav nationals enjoy exactly the same rights and privileges over such property as do Yugoslav nationals. It is also asserted that the Ministry of Justice has always informed Yugoslav courts that reciprocity of inheritance exists between Yugoslavia and the United States. Attached is a copy of a decree of a Belgrade court distributing a portion of an estate in Yugoslavia to a United States citizen.
Another official communication between the Yugoslav Ministry of Finance and the Ministry of Labor, over objection, was introduced in which it is stated that the Ministry of Finance has never issued any regulation limiting the right of inheritance of estates of Yugoslav citizens by American citizens. The document states that, due to the shortage of foreign exchange, it has not always been possible to transfer funds from Yugoslavia to the United States, but that it is the intention of the government to allow such transfers as soon as conditions permit.
This was appellant's case. It is obvious that such evidence, independent of the presumption of reciprocity, would fully support a finding of such reciprocity. But the trial court found that reciprocity did not exist. The question is whether there is any substantial evidence to support that finding.
Respondent first offered two letters, one from C. W. Cannon, United States Ambassador to Yugoslavia, dated August 14, 1947, and addressed to the then Attorney General of California, and the other from A. G. Heltberg, American Consul at Belgrade, dated November 4, 1948, and addressed to Frank O'Brien, respondent's attorney. Neither of the letters to which these two letters were responses was offered. Both letters introduced purport to discuss certain laws and regulations of Yugoslavia and purport to give opinions as to how they are enforced. Appellant objected to the introduction of these letters on the grounds that they were incompetent, irrelevant, and immaterial, were hearsay and that no proper foundation had been laid for their introduction. The objections were good. The letters should not have been admitted. There was no showing that Cannon or Heltberg were experts on Yugoslav law. In fact, the Heltberg letter states that ‘this office can not assume responsibility for statements made in respect to the laws of Yugoslavia.’ The letters were merely informal documents, and certainly were not official documents. The important question of whether a sovereign state abides by its laws and treaties should not be made to depend upon informal off-hand opinions of officials who may or may not be experts. Without a further showing, the letters should not have been admitted.
It must not be assumed that these two letters support the finding of non-reciprocity. They do not. Both relate primarily to the foreign exchange controls limiting the transfer of funds from Yugoslavia to this country, a factor which, under the cases already cited, is not relevant on the issue of reciprocity. Cannon's letter was apparently in response to a letter from the attorney general telling Cannon that several Yugoslav residents and citizens had applied to recover funds on deposit in California banks, and inquiring if American citizens with money on deposit in Yugoslavia could withdraw such money, and requesting information about any currency regulations that might exist. Cannon replied that there were stringent regulations in force ‘with regard to the export of foreign exchange and the transfer of property abroad.’ Reference is made to pertinent provisions of the Foreign Exchange Law putting all foreign exchange transactions under govenrment control, and requiring a permit for such transactions. The following paragraph of the letter is particularly relied upon by respondent:
‘According to the Embassy's information, the Yugoslav authorities have, so far, not only granted no foreign exchange permits to American claimants to the proceeds of property in Yugoslavia, but have, with minor exceptions, made it impossible for American citizens to establish their claims. In only one known instance has an American citizen actually been able to bring his claim to the point where his attorney could apply for a foreign exchange permit, and that application has been refused. This case involved a legacy.’
The letter then refers to the confiscation and nationalization of many American properties. This letter was written before the claims settlement agreement, already referred to, was entered into between the two countries.
The letter of Heltberg to O'Brien also deals primarily with the foreign exchange law, a copy of which was enclosed. The letter states that the ‘law provides for a tight control of all foreign currencies held by Yugoslavia, and it is the opinion of the Embassy that American heirs ordinarily would not be able to transfer their inherited monies [sic] into American currency.’ Attention is then called to the fact that the Embassy has records of but one case of such a transfer since the end of the war, and to a communication from the Yugoslav government informing the Embassy that ‘it would grant transfers of funds derived from legally inherited properties within the limits of available foreign exchange stocks. However, because of lack of foreign exchange, the amounts for the time being would have to be deposited with the National Bank of the Federative People's Republic of Yugoslavia in Yugoslav currency as property of foreign successors.’
The letter goes on to mention the fact that the Yugoslav decree of March 20, 1948 ‘permits acquisition of real estate in Yugoslavia by foreigners but only on the basis of legal inheritance or for official use. All other real estate owned by foreigners would be nationalized. The American heir, however, would have little control over his inherited properties. He would have to have the approval and consent of the competnet state authorities before he could sell, transfer or dispose of the property. He would not be able to sell, transfer or dispose of the property to a non-Yugoslav citizen. The amount of income derived from the property and the use of the property would be determined by local housing authorities. Furthermore, to complicate matters, the Yugoslav Government does not recognize the right of their citizens to be nationalized as American citizens. The Embassy believes it possible that a person possessing Yugoslav nationality under Yugoslav law and American citizenship under American law could inherit Yugoslav real estate in the same manner as other purely Yugoslav citizens. When such a dual national is subsequently divested of his Yugoslav nationality, his previously inherited properties in Yugoslavia would presumably be seized without right of indemnity.’
There was next introduced into evidence by respondent, without objection from appellant, a letter with six enclosures to lawyer O'Brien dated December 24, 1948, from Francis E. Flaherty, Acting Assistant Chief, Division of Protective Services, Department of State, Washington, D. C. The letter calls attention to the decree of March 20, 1948, passed a year after the death of the decedent here involved, which contains the following sentence: ‘Foreign citizens may not acquire right of property on real estate on the territory of the Federative People's Republic of Yugoslavia, except on the basis of legal inheritance.’ The letter then states that it had been thought that the Nationalization Law, which provides: ‘On the day this law becomes effective, all real estate owned by foreigners * * * will be nationalized,’ nullified the right of aliens to inherit at all, but by a decree of June 23, 1948, the right of foreigners to gain ownership of real property ‘on the basis of legal inheirtance’ was reaffirmed. The letter then sets forth the same restrictions on such ownership as were set forth in Heltberg's letter above quoted, and then states that the Nationalization Law and the June decree ‘are presently interpreted by Yugoslav officials so as to permit alien heirs to inherit or succeed to property only when, under Yugoslav law, they are also natural heirs of the deceased.’
The enclosures are translations of various laws and decrees and of a note from the Yugoslav Ministry of Foreign Affairs to the United States dated October 9, 1948. Several of the enclosed laws and decrees relate to the foreign exchange controls that have already been mentioned. One of the enclosures is a decree dated March 20, 1948, relating to the ‘Control of Real Estate Transactions.’ This decree was not in effect when decedent died. It provides that all transfers of real property are ‘subject to prior approval by the competent state authorities,’ and provides that such authorities shall deny such approval when the transfer is made for speculative purposes, or when such transfer will produce a larger income than needed for livelihood, or would exceed the maximum area allowed for agricultural ownership. This decree also prohibits a foreign citizen from owning land ‘except on the basis of legal inheritance.’ Attached to this decree is an ‘Obligatory Interpretation’ by the Praesidium, the highest authority in Yugoslavia, to the effect that a Yugoslav who acquires another citizenship forfeits his real estate to the state without compensation.
The official note above referred to from the Ministry of Foreign Affairs of Yugoslavia to this country stated that the ‘Yugoslav Courts strictly apply all Yugoslav provisions, laws and international agreements clearly regulating the rights of foreign citizens to acquire or inherit to [sic] real or personal property situated in Yugoslavia, within the limits of the existing provisions and without any discrimination i. e. under the same conditions as citizens of the most favoured nation.’ Reference is then made to the decree of March 20, 1948, limiting foreign real estate holdings to those acquired as ‘heirs at law,’ and then it is argued that such provision is consistent with treaty obligations because all foreigners are treated alike. It is then stated that as to transfers abroad of legally inherited properties the Yugoslav government ‘will grant such transfers within the limits of available foreign exchange stocks,’ and when such stocks are not available the sum in question can be temporarily deposited in the national bank, in Yugoslav currency, as property of foreign successors.
Without objection, appellant next introduced a Yugoslav decree dated July 16, 1946, relating to the acquisition of real property by foreigners. It provides that foreigners may acquire real property in Yugoslavia ‘either by legal business among the living or by legacy (in case of death) only by previous approval of the competent government agency.’ A lease to a foreigner for over five years likewise requires a permit, but neither of these limitations applies ‘to acquisitions of real estate by legal inheritance.’ Agencies are designated with permit issuing powers and the right of appeal granted from their decisions.
Also without objection a copy of the Nationalization Law was introduced. In court counsel for respondent read into the record an amendment to that Act adopted April 28, 1948, more than a year after the death of the decedent here involved. By the amendment, most real estate, as of the effective date of the amendment, owned by foreigners, was nationalized, except real estate operated by peasant farmers or used by the owner as living quarters. The amendment also provided that Yugoslav citizens who became foreign citizens lose the right of ownership of real estate.
Also without objection there was introduced another letter from Heltberg, American Consul in Yugoslavia, addressed to the California State Controller and dated January 19, 1949. Most of the material in this letter is cumulative of material already introduced. It refers to the decree of March 20, 1948, limiting the right of foreigners to acquire real estate except ‘on the basis of legal inheritance,’ and then points out that such clause has been informally interpreted by the Yugoslav officials ‘to mean that foreign citizens may inherit property if they, under Yugoslav law, are considered to be the natural heirs of the deceased. If property is willed to some other person than the natural heir that person may not succeed to the property in question.’ It is also pointed out that Americans succeeding to property in Yugoslavia would be faced with various restrictions and controls. The letter then discusses the penalties of dual citizenship, and then continues: ‘Since 1945, the Embassy has no record of any case where American citizens have been heirs in Yugoslav estates. It is generally believed that the political affiliations of the American heir would not affect his right to inherit unless he was a dual national and his property liable to confiscation for crimes against Yugoslavia.’
The only other exhibits introduced by respondent were two booklets of speeches by Yugoslav leaders which add nothing to the other evidence already mentioned.
On this evidence the trial court found that reciprocity as to both real and personal property did not exist. The estate here involved consisted, at the time of death, of both real and personal property, the real property having been sold during the course of administration. There can be no doubt at all that the weight of the evidence indicates that reciprocity exists. Certainly that is true as to the personal property. However, we cannot say, as a matter of law, that reciprocity exists as to the real property. It is probably true that there is evidence or inferences therefrom that support the finding of non-reciprocity as to real property. The evidence of the laws, decrees and interpretations to the effect that foreigners can succeed to Yugoslav real estate only if they are heirs at law, that a Yugoslav who acquires American citizenship forfeits his rights in real property in Yugoslavia, etc., probably support the finding of non-reciprocity as to the real property. But even as to this issue the evidence is not satisfactory because most of these laws, decrees and interpretations were passed or made after the death of the decedent here involved. It is the law in effect at the time of such death in which we are here interested. It is by no means clear that such laws, decrees and interpretations are construed to be retroactive. That may be cleared up on a new trial.
Even though it be assumed that there is some evidence, or inferences therefrom, that support the finding of non-reciprocity as to the real estate, there are other factors disclosed by the record that require a reversal and the granting of a new trial. The record discloses that the trial court considered and gave great weight to evidence not relevant to the issue of reciprocity, and that the finding of non-reciprocity was partially based on this non-relevant evidence. That this is so is conclusively demonstrated by an examination of the transcript, of the memorandum opinion of the trial court, and of the findings.
On numerous occasions during the trial the court expressed great distrust of the form of government existing in Yugoslavia, and expressed great interest in what would happen to the bequest here involved when delivered in Yugoslavia. Great interest was shown in the foreign exchange regulations that would constitute a restraint on an American citizen transferring Yugoslav funds inherited there to this country. For example, the trial court stated at R.T. p. 221: ‘We know that Yugoslavia today is dominated by a Communistic government. They are in power today. Now, this Court, the stand that I have taken is that I would have to have pretty good evidence before I would distribute to anyone, or to any government back there that is dominated by the Communists. [What became of the presumption that reciprocity exists?] Having this case in mind, I met people who have been there, lived there, even when I was on a little vacation in Arizona, and I met a woman who lived there, and they took all of her property. They confiscated all of the business of her husband and herself.’ At pages 135, 150, 160, 223 and 243 appear other comments by the trial judge indicating how strongly he was motivated by the fact that the government of Yugoslavia was socialistic or communistic.
The theory upon which the trial court proceeded is also disclosed in the memorandum opinion. It is there stated: ‘Furthermore, it has not been established to the satisfaction of the Court that the said John Arbulich, Jr. [the Yugoslav heir] would receive the benefit of any distribution to him of the balance of the estate, consisting of cash in excess of $30,000.00. It was established at the hearings by the testimony of the Yugoslav Ambassador Kosanovich that the present government of Yugoslavia is Communistic and that the property rights of individuals are completely ignored. Under the circumstances the Court cannot in good conscience order $30,000.00 or more distributed to the claimant in Yugoslavia or to any representative of that country without any assurance whatever that the distributee would ever receive any part of such funds.’
Thus the trial judge not only indicated that he would not consider the presumptions already mentioned in favor of reciprocity, but also indicated that he had forgotten or would not consider the documentary and oral testimony to the effect that the Yugoslav heir would be permitted in Yugoslavia to enjoy the full benefits of the bequest.
The weight given by the trial court to these factors is also disclosed in the formal findings. Finding X reads as follows: ‘That at the time of death of said decedent the Government of Yugoslavia was Communistic and has been ever since, and that the property rights of individuals are ignored, and that, under the circumstances, the Court could not, in good conscience, order distribution to the claimant in Yugoslavia. That under the laws and regulations of Yugoslavia, John Arbulich, Jr. does not have any rights of ownership or control of his property, and if distribution were ordered to John Arbulich, Jr. it would, in fact, be distribution to the Communistic Government of Yugoslavia. Such distribution would be against public policy and contrary to provisions of Section 27 of the California Probate Code.’
There is no evidence at all that the Yugoslav claimant would not be permitted to enjoy his legacy in Yugoslavia. The evidence is all the other way. The solemn declaration of the Ambassador from Yugoslavia that the Yugoslav claimant would receive the money free of any tax and that he would enjoy ‘free and unabridged use and enjoyment thereof’ could not thus lightly be disregarded. The Ambassador is the highest diplomatic official of the country he represents, and his declarations about the law and practices in his country are entitled to great weight.
The fact that the court disapproved of the form of the government of Yugoslavia was not relevant at all on the issue of reciprocity. Yugoslavia is a sovereign state and is recognized as such by the government of the United States. As long as some right of inheritance is recognized in that state, and the evidence here without conflict discloses that it is, the fact that such right differs from the right of inheritance in this country, or that as an individual a judge may disapprove of the form of government, are factors which are not relevant and should not be considered on the issue of reciprocity. This was clearly pointed out in the Estate of Kennedy, 106 Cal.App.2d 621, 235 P.2d 837, involving Romania, a country that is not only communistic, but within the sphere of influence of Russia, which Yugoslavia certainly is not. Some degree of socialization and nationalization has taken place in most European countries, a policy we as individuals may or may not approve, but as judges passing on the issue of reciprocity, the form of such governments is a false factor, and a matter for each sovereign country to determine for itself.
The fact that an American claimant of an estate in Yugoslavia would be subject to foreign exchange controls and could not immediately receive his legacy in this country is also an irrelvant factor. Practically every country in the world has some limitation on the export of wealth from the country. Such factor has nothing to do with the issue of reciprocity. It was so held in Re Estate of Miller, 104 Cal.App.2d 1, 230 P.2d 667, and In re Estate of Blak, 65 Cal.App.2d 232, 150 P.2d 567.
Much is said in the briefs about the proper interpretation of the treaty of 1881 and about how such treaty should be interpreted in view of the case of Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633. The question is not how that treaty should be interpreted as a matter of law, but how the contracting parties have interpreted it. The Ambassador testified that it had been interpreted to grant reciprocity to all American nationals. While there is no evidence directly contrary to this, there may be inferences that would support a finding to the contrary. Any gaps in the evidence on this point can be supplied on the new trial.
Enough has been said to indicate that the finding of lack of reciprocity was based partially upon inadmissible evidence, upon factors irrelevant to the issues, and upon laws and regulations and decrees passed after the death of decedent. This being so, the judgment cannot stand. A new trial should be had at which only admissible evidence and relevant factors are considered.
There is one other point that must be considered. Respondent contends, and the trial court found, that appellant was not properly represented in the proceeding. For that reason, it is urged, this judgment must be affirmed. It should be pointed out that, in spite of this finding, the trial court also disposed of the case on its merits. Such disposition is, of course, inconsistent with a finding that the appellant had made no proper appearance in the action.
The contention that appellant was not properly represented is based upon the fact that the lawyer appearing on behalf of appellant was appointed by the Consul General of Yugoslavia to represent appellant. The lawyer had no power of attorney from appellant nor any other direct authority to represent him. Throughout the trial, counsel for respondent objected on this ground, and the trial judge, on many occasions, observed that he thought a personal power of attorney was indispensable. As already pointed out, an express finding was made on this issue.
The petition of John Arbulich, Jr. alleges that it is filed by the Consul General of Yugoslavia as attorney in fact for John. It is further averred that under the power and authority vested in the Consul General by the United States and by the laws and treaties between the United States and Yugoslavia, he, as Consul General, has the power and authority to act as attorney in fact for his nationals who inherit American property. The recognition by the United States of the Consul General with power ‘to exercise and enjoy such functions, powers and privileges as are allowed to the Consuls General of the most favoured Nations in the United States' was duly proved. The question is, can the Consul General appear in our courts as attorney in fact for his nationals in a probate proceeding? Can a Consul appoint counsel to represent such nationals? The answer is clear that he may.
The parties discuss the proper interpretation of an article in the Consular Convention between the United States and Serbia concluded in 1881, 22 Stat. 968 contemporaneous with the other Serbian treaty already mentioned in this opinion, and, like it, recognized by both the United States and Yugoslavia as being still binding. Art. XI provides:
‘In the case of the death of any citizen of the United States in Serbia, or of a Serbian subject in the United States, without having any known heirs or testamentary executors by him appointed, the competent local authorities shall give information of the circumstance to the consuls or consular agents of the nation to which the deceased belongs, in order that the necessary information may be immediately forwarded to the parties interested.
‘Consuls-general, consuls, vice-consuls and consular agents shall have the right to appear, personally or by delegate, in all proceedings on behalf of the absent or minor heirs or creditors until they are duly represented.’
The parties argue over the proper interpretation of this treaty. Appellant argues that the second paragraph should be read independently of the first so as to give the Consul General the power alleged to exist. Respondent argues that the first paragraph limits the operation of the second paragraph to nationals dying abroad in the other country, and does not include the right to represent in the other country nationals residing at home. If the document alone be considered, either interpretation is reasonable. But the treaty provision must be considered together with applicable principles of international law. Without reference to any treaty provision, it is a well settled principle of international law that consular representatives are deemed to be international attorneys in fact for their nationals. One of the earliest cases so holding, and a leading case on the subject, is The Bello Corrunes, 6 Wheat. 152, 5 L.Ed. 229. In that case the United States Supreme Court held that a vice consul of Spain was entitled to make a claim by way of libel on behalf of Spanish owners of a Spanish ship resident in Spain and whose identities were unknown to the consul. In that case the following frequently quoted statement appears, 6 Wheat. at page 168, 5 L.Ed. 229: ‘On the first point made by the attorney-general, this court feels no difficulty in deciding, that a vice-consul, duly recognized by our government, is a competent party to assert or defend the rights of property of the individuals of his nation, in any court having jurisdiction of causes affected by the application of international law. To watch over the rights and interests of their subjects, wherever the pursuits of commerce may draw them, or the vicissitudes of human affairs may force them, is the great object for which consuls are deputed by their sovereigns; and in a country where laws govern, and justice is sought for in courts only, it would be a mockery, to preclude them from the only avenue through which their course lies to the end of their mission. The long and universal usage of the courts of the United States, has sanctioned the exercise of this right, and it is impossible, that any evil or inconvenience can flow from it. Whether the powers of the vice-consul shall, in any instance, extend to the right to receive, in his national character, the proceeds of property libelled and transferred into the registry of a court, is a question resting on other principles. In the absence of specific powers given him by competent authority, such a right would certainly not be recognized. Much, in this respect, must ever depend upon the laws of the country from which, and to which, he is deputed. And this view of the subject will be found to reconcile the difficulties supposed to have been presented by the authorities quoted on this point.’
In the case of In re Tartaglio's Estate, 12 Misc. 245, 33 N.Y.S. 1121, it was held, both as a result of an interpretation of a treaty with Italy and by general international law, that the Italian Consul General could properly apply and receipt for the distributive shares of personal property on behalf of the Italian heirs.
In the case of Buxhoeveden v. Estonian State Bank, 181 Misc. 155, 41 N.Y.S.2d 752, there is a good collection of case and text authorities. There, both by treaty and on general principles, the Estonian Consul General was permitted to appear and set aside a default judgment, and to defend a suit against the Estonian State Bank, treated in the opinion as a private person.
The case of In re Zalewski's Estate, 292 N.Y. 332, 55 N.E.2d 184, 157 A.L.R. 87, is another good case on the subject, and collects and comments on many relevant authorities. There it was held by the New York Court of Appeals that either by treaty or by general principles of international law, a consular representative could even exercise on behalf of one of its nationals resident in the home country the personal right of a widow to elect not to take under a will. While three justices dissented in that case, they did so only on the ground that the power of the consul did not extend to the exercise of such a personal right—they did not disagree with the majority holding that a consul has the right to appear and to represent his nationals.
In interpreting the treaty provision here involved, the following principles stated in In re Zalewski's Estate, 292 N.Y. 332, 55 N.E.2d 184, 186, 157 A.L.R. 87, amply supported by authority, are applicable: ‘In arriving at the meaning of the treaty we are bound to remember that it is the supreme law of the land * * *, that its words are to be taken liberally in the light of evident purposes * * * and that, since the pact is done in counterparts, one in each language little use can be made of local technical definitions of words. * * * When two constructions of a treaty are admissible, one restrictive of the rights that may be claimed under it and the other liberal, the latter is always to be preferred. * * * ‘This court would not readily lean to favor a restricted construction of language, as applied to the provisions of a treaty, which always combines the characteristics of a contract, as well as a law’. The Bello Corrunes, 6 Wheat. 152, 171, 5 L.Ed. 229.'
With these well settled principles in mind we have no reasonable doubt but that the treaty here involved should be interpreted so as to confer a treaty right on the consuls of the contracting countries to appear on behalf of their nationals not otherwise represented and to represent them in the courts of the other country.
This conclusion would be almost inevitable were it not for the case of In re Estate of Clausen, 202 Cal. 267, 259 P. 1094. There it was held that the Danish Consul did not have the right to receive distribution of and receipt for the interests of Danish nationals under the then treaty with Denmark. The treaty there involved was one entered into in 1826 and related solely to problems of navigation and commerce existing between the two countries. It contained a clause that for the protection of navigation and commerce each country would agree to receive and admit consuls from the other who should enjoy all the privileges and powers of consuls conferred by either on the consuls of the most favored nation. Nearly a hundred years after this treaty was entered into, United States entered into a much broader treaty with Germany which expressly conferred upon consuls of either country the power on behalf of non-resident nationals to receive and to receipt for distributive shares of estates to which such non-resident nationals were entitled. The Supreme Court of California ruled, purely as a matter of interpretation of the treaty, and without reference to general principles of international law, that the treaty between Denmark and the United States related solely to problems of navigation and commerce, and that the powers conferred by that treaty on consuls related solely and exclusively to such problems. Thus the treaty with Germany did not operate under the most favored nation clause to confer any rights on Danish consuls except in connection with navigation and commerce. The court did not discuss the right of the Danish Consul to appear and represent his national residing in Denmark in the probate proceeding under the general principles of international law above discussed. It simply decided that such consul, under the treaty, had no power to have distributed to himself and to receipt for the share of the estate to which the Danish national was entitled. See, also, Petersen v. Lyders, 139 Cal.App. 303, 33 P.2d 1030, and Lyders v. Petersen, 9 Cir., 88 F.2d 9.
The present case differs from the Clausen case in several particulars. The present case does not involve the right of the Yugoslav Consul General to have distributed to him and to receipt for the property bequeathed to appellant. The proceeding on appeal is not for distribution, but to determine heirship. Several times during the trial counsel appointed by the Consul General stated that he was not contending that the estate should be distributed and receipted for by the Consul General. He agreed that the court could order the estate distributed directly to appellant, and, in that event, offered to see that the estate was distributed to appellant and receipted for by him. This is important, not only because it serves to distinguish the instant case from the Clausen case, but because it also meets the doubts expressed in the case of The Bello Corrunes, 6 Wheaton 152, 5 L.Ed. 229. In the quotation from that case above set forth the United States Supreme Court expressed doubt that, under general principles of international law, a consular representative could have the proceeds of the pending action distributed to himself, but had no doubts about the power of such representative to appear and to represent his absent national.
In the second place, the Clausen case limited its decision to an interpretation of the treaty involved. It did not discuss the power of a consul, independent of treaty, to appear and to represent his non-resident nationals in lawsuits in the country to which such consul was accredited.
In the third place, the instant case is distinguishable from the Clausen case because unlike the treaty involved in the Clausen case, the treaty here, properly interpreted, confers the very power involved. Moreover, under general principles of international law, consuls possess the power to appear for and to represent their non-resident nationals in the courts of the country to which such consul is accredited.
The judgment appealed from is reversed.
1. (A hectare is 2.471 acres.)
PETERS, Presiding Justice.
BRAY and FRED B. WOOD, JJ., concur.