IN RE: CARAVAS' ESTATE.*

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District Court of Appeal, Third District, California.

IN RE: CARAVAS' ESTATE.* BRANDENBURGER v. STATE.

Civ. 7985.

Decided: August 06, 1952

Brandenburger & White, Sacramento, for appellant. William J. Power, Dep. Atty. Gen., for respondent.

Gerasimos Caravas died intestate in San Francisco on September 30, 1941. His estate was probated there, and in the absence of known heirs was distributed to the State of California, the decree of distribution being dated September 15, 1942.

On August 25, 1947, Sheldon Brandenburger was appointed administrator of the estate of Foteini G. Caravas by the Superior Court in Sacramento County. Immediately thereafter said administrator filed a petition in the superior court, which petition alleged the fact of the death of Gerasimos Caravas and the probate proceedings in San Francisco as hereinbefore set forth, and alleged further that there was distributed to the State of California the sum of $1,936.18 constituting the residue of said estate; That Foteini G. Caravas, the mother and sole heir of the estate of Gerasimos Caravas, did not appear in the probate proceedings nor offer proof of her right of succession; that Foteini G. Caravas died in Greece on or about January 1, 1944, being at that time a resident of Greece, and that she was survived by five children, all of whom were residents and citizens of Greece.

The answer to the petition denied the allegation of relationship, and raised two separate defenses, the first being that the petitioner was barred by the provisions of section 1027 of the Probate Code in that Foteini G. Caravas did not appear and demand the property within five years from the time of succession; and secondly, that petitioner was barred under the provisions of section 259 of the Probate Code in that no reciprocal rights existed between the United States and Greece.

The court found the relationship existed as alleged in the petition, and that the surviving children of Foteini G. Caravas were residents of Greece except Odysseus Caravas who was a resident of New York at the time of the death of Gerasimos Caravas. It was found that at all times pertinent here Americans had the right to inherit property located in the country of Greece upon the same terms and conditions as citizens of the country of Greece. The court also found ‘That the country of Greece was occupied by the German military forces from April 7, 1941, until November 30, 1944, and continuously from the date of death of said decedent until November 30, 1944, said mother of said decedent and said heirs of said mother and said petitioner herein were by reason of the existence of a state of war under a disability to commence an action for the recovery of the estate of said Gerasimos Caravas, and were under a disability to make claim for the recovery thereof.’ It was also found that there had been no demand for the property within five years from the death of Gerasimos Caravas.

As conclusions of law, it was adjudged that the petitioner was barred by section 1026 of the Probate Code, and that the five year period within which the alien heirs of a decedent, or the administrator of the estate of an alien heir of the decedent must appear and claim the property of the decedent, is not extended by the provisions of section 354 of the Code of Civil Procedure. Judgment was entered accordingly. The petitioner has appealed.

Appellant contends that the five year period under section 1026 of the Probate Code within which a nonresident alien must appear and claim the property was suspended while the foreign claimants were disabled by reason of a state of war from asserting rights in this country. The brief of appellant points out that under section 2 of the Trading with the Enemy Act, U.S.C.A., Title 50, Appendix, § 2, Foteini G. Caravas was an ‘enemy alien’ at the time of her son's death and up to the time of her death on January 1, 1944; and that enemy aliens were prohibited from bringing actions in courts in this country. The amicus curiae brief of the Attorney General of the United States points out that under that act Greeks were prohibited from communicating with anyone in this country ‘except in the regular course of the mail,’ and that during the period Greece was occupied by German forces the United States mail service to Greece was suspended.

It is argued by appellant that section 354 of the Code of Civil Procedure operated to suspend the five year period during time of war. That section provides: ‘When a person is, by reason of the existence of a state of war, under a disability to commence an action, the time of the continuance of such disability is not part of the period limited for the commencement of the action whether such cause of action shall have accrued prior to or during the period of such disability.’

Respondent argues that said section has no application since it is concerned with the commencement of legal actions, and under section 1026 of the Probate Code it is not necessary for a nonresident alien to bring an action to perfect title to property. Section 1026 provides: ‘A nonresident alien who becomes entitled to property by succession must appear and demand the property within five years from the time of succession; otherwise, his rights are bared and the property shall be disposed of as escheated property.’ (Italics added.)

In answer to respondent's argument that section 1026 of the Probate Code does not require or contemplate any legal proceedings, appellant argues that it was necessary to assert the claim in a court of law, and cites section 1027 of the Probate Code which prescribes the procedure to be followed by a resident heir to recover property held by the State Treasurer. Said section provides in part:

‘[Time to file claim.] 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 appear in the Superior Court for the County of Sacramento and claim the estate or any part thereof. Rights of nonresident aliens shall be governed by the provisions of Section 1026 of this code. Such court shall have full and exclusive jurisdiction to determine the title to said property and all claims thereto.

‘Any person who does not appear and claim, as herein required, shall be forever barred, and such property, or so much thereof as is not claimed shall vest absolutely in the State.’

But respondent in reply points out that said section 1027 refers to the time after distribution to the state within which a petition must be filed in the superior court by resident citizens, and that said section 1027 specifically says that the rights of nonresident aliens are governed by section 1026.

At common law and under the law of California as it existed from 1849 to 1856, aliens, at least as to real property, were denied the right of taking by succession. In 1856 the legislature made provision for succession by nonresident aliens. Stats.1856, p. 137. The right of aliens to take by succession was governed by the statute of 1856 until 1873 when, with the enactment of the Civil Code, sections 672 and 1404 thereof became effective. These sections provided:

Sec. 672: ‘If a non-resident alien takes by succession, he must appear and claim the property within five years from the time of succession, or be barred. The property in such case is disposed of as provided in Title VIII, Part III, Code of Civil Procedure.’

Sec. 1404: ‘Resident aliens may take in all cases by succession as citizens; and no person capable of succeeding under the provisions of this title is precluded from such succession by reason of the alienage of any relative; but no non-resident foreigner can take by succession unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession.’

Said sections 672 and 1404 were replaced by Probate Code section 1026 in 1933.

In Estate of Laurence, 84 Cal.App.2d 500, at pages 504–508, 191 P.2d 109, 112, this court, in discussing the various sections hereinbefore quoted, said:

‘One entitled to succession takes, not by virtue of the decree of distribution, but by the law of succession. * * *

‘However, while title of a non-resident alien heir vests upon the death of decedent, it does so on the condition subsequent that he appear and demand the property within the prescribed period of five years. This has been held in numerous cases. In Lyons v. State, 67 Cal. 380, 7 P. 763, a decedent resident of California died leaving as his only heirs at law certain alien residents of Ireland, who appeared and claimed the estate. The state of California contended that under section 4, Art. IX, of our state constitution, decedent's estate had vested eo instante in the state; but the court said, at page 384 of 67 Cal. at page 765 of 7 P.: ‘The fault in the argument is that Guilford did not die without heirs. The petitioners were his heirs, and the property of his estate vested in them, subject to be divested if they did not appear and claim it within the time and in the manner provided by statute.’ To a like effect is the holding in Carrasco v. State, 67 Cal. 385, 7 P. 766. There a California resident died, leaving surviving him a widow and minor child residing in Chile. The minor child died, and the widow assigned her interest in the estate to Carrasco, who, after the estate had been administered and the residue paid into the state treasury, appeared and claimed same—presumably within five years from the death of decedent. The court held that since, under sections 671 and 672 of the Civil Code, an alien may take, hold or dispose of property, real or personal, within the state if claimed within the given time, such person took by succession and could dispose of her interest; and that the buyer or assignee could then claim same.

‘In State v. Smith, 70 Cal. 153, 12 P. 121, it was contended also that a non-resident alien could not take by succession. The court said, page 156 of 70 Cal., page 123 of 12 P.:

“All aliens take by succession. Civ.Code, § 671. The failure of a non-resident alien to ‘appear and claim’ within five years after descent cast operates a bar of his right to assert any title in the property as against the state. And this, not on the idea that the property has escheated to the state, as of the date of the death of the ancestor, but because by the law the ‘non-resident’ takes subject to the loss of his right by a failure to make claim within the five years. The clause of section 672 is a limitation, applicable, however, not alone to the commencement of an action in the courts, but to any appearance within the state, and the assertion of a claim, whether by such action or otherwise. The claim may be in pais, as by taking possession of the property, or conveying or contracting with respect to it. If he fails to appear and claim it, the property is escheat at the expiration of the five years.'

‘Also see People v. Roach, 76 Cal. 294, 296, 18 P. 407; Estate of Pendergast, 143 Cal. 135, 140, 76 P. 962; Estate of Romaris, 191 Cal. 740, 744, 218 P. 421; State v. Miller, 149 Cal. 208, 210, 85 P. 609; 1 Cal.Jur. 925.

‘Under the authorities hereinabove cited, the heir in this case, being a non-resident, succeeded to the title to the property of the estate subject to divestiture if she did not claim the property, not before a decree of distribution had been made, but within five years from the death of the decedent. And in order to prevent such divestiture it was necessary to show that she had appeared and claimed the property within five years.’

In Estate of Pendergast, 143 Cal. 135, at page 140, 76 P. 962, at page 964, the court said:

‘* * * The respondent claims that, if one of the persons who would otherwise take by succession is barred from so doing by reason of being a nonresident alien, the effect is, that his share goes back to the estate, and is inherited by the other heirs. This claim, we think, is not justified by the terms of the statute. They clearly imply that upon the death of the deceased the estate vests as a conditional estate in the nonresident alien heir, subject only to the contingency that, if he fails to appear and claim the same within five years, his right ceases, and the property then vests in the state, not strictly by escheat for want of heirs, but by virtue of the effect of the statute. Lyons v. State, 67 Cal. [380] 384, 7 P. 763; State v. Smith, 70 Cal. [153], 156, 12 P. 121; People v. Roach, 76 Cal. [294], 296, 18 P. 407.’

We believe that under the foregoing authorities and code section it must be held that a conditional estate vested in Foteini G. Caravas upon the death of Gerasimos Caravas, which estate was subject to divestiture under section 1026 of the Probate Code unless she appeared and demanded the property within five years. We are convinced also that said section 1026 is a law of succession and not a statute of limitations and that the words ‘must appear and demand the property’ do not contemplate or require the commencement of any legal action.

Appellant cites Ebert v. State of California, 33 Cal.2d 502, 202 P.2d 1022, which is concerned with section 1027. The only question involved in that case was whether the five year period within which a resident heir must appear and claim his inheritance by filing a petition began at the time of the entry of the decree of distribution or at the time of delivery to the State Treasurer. The question of whether the period prescribed by section 1027 was a statute of limitations was not in any way involved, and we do not believe that the court, by referring to the five year period as a ‘period of limitation’ intended to hold that it was a statute of limitations. But even if the five year period in section 1027 could be considered a statute of limitations on the basis that it requires a petition to be filed in the superior court, we are satisfied that the five year period in which a nonresident alien ‘must appear and demand the property’ under said section 1026 is not a statute of limitations, because the filing of no petition or action is required, and because, as hereinbefore stated, we are satisfied that said section 1026 is a law of succession and not a statute of limitations.

Appellant also cites Estate of Knauft, 59 Cal.App. 536, 211 P. 29, in which proceedings to contest a will were instituted in 1921 by German aliens after the statutory period for filing such contest had expired. The court there referred to the provisions of section 354 of the Code of Civil Procedure and the Trading With the Enemy Act, and concluded that such German enemy aliens were entitled to maintain their contest because of the disability which prevented them from asserting their rights when they arose. But, as respondent correctly points out, in order to maintain their contest it was necessary for the German heirs to commence a legal proceeding, which clearly entitled them to the benefit of the provisions of said section 354, whereas there is no such requirement under section 1026 of the Probate Code which is a law of succession and not a statute of limitation.

Appellant makes the further contention that under the principles of international law, the time period contained in section 1026 of the Probate Code was tolled during the period of disability, and that it is immaterial whether the time limitation relates merely to the remedy or is an essential requisite to the right. Appellant cites 34 Am.Jur., p. 201, and Supp. p. 28, on which latter page it is said: ‘This principle of international law the courts have attached to, or read into, statutes of limitation, though it is not expressed in them; and it is applicable irrespective of whether the limitation in the particular statute of limitations is considered to be a limitation of the right or liability, or of the remedy, although there is apparently some contrary authority.’

Appellant cites Frabutt v. N. Y. C. & St. L. R. Co., D.C., 84 F.Supp. 460, an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., which specified a three year period of limitation. Action was brought by the wife of the deceased workman after the limitation had run. In deciding that the limitation period was suspended during the period of disability, the court stated, at page 464 of 84 F.Supp.: ‘It appears by a firmly established principle of international law that the existence of a state of war between two countries or powers is effective to suspend the running of statutes of limitations as between the citizens of such countries or powers at war, or, as it has been otherwise stated, war suspends the statute of limitations against alien enemies resident in enemy territory. On the restoration of peace all rights suspended during hostilities, or which remain dormant, are revived, and the statute of limitations again becomes operative. The rule suspending the running of limitations during war is one of international law which the courts attach to, or read into, statutes of limitations, though it is not expressed in them; and it is applicable irrespective of whether the limitation in the particular statute of limitations is considered to be a limitation of the right or liability, or of the remedy.’

Respondent does not dispute the principles of international law quoted by appellant but argues that in all the cases cited by appellant the thing that was required and which was absolutely necessary was the commencement of an action, and the Probate Code section 1026 makes no such requirement.

We have already reached the conclusion, as hereinbefore stated, that said section 1026 is a law of succession and not a statute of limitations, that the words ‘must appear and demand the property’ do not contemplate or require the commencement of any legal action, and upon the death of Gerasimos Caravas a conditional estate vested in Foteini G. Caravas, which estate was subject to divestiture unless she appeared and demanded the property within five years. If we are correct in this conclusion, then the principles of international law relied upon by appellant will not aid his case, because, as stated in In re Wilmerding, 117 Cal. 281, at page 284, 49 P. 181, at page 182: ‘The right of inheritance, including the designation of heirs and the proportions which the several heirs shall receive, as well as the right of testamentary disposition, are entirely matters of statutory enactment, and within the control of the legislature.’

Notwithstanding the earnest and able arguments contained in the briefs of appellant and in the amicus curiae brief of the Attorney General of the United States, we are convinced that the trial court correctly concluded that the five year period within which the alien heirs of a decedent, or the administrator of an alien heir of the decedent, must appear and claim the property of the decedent is not extended by the provisions of section 354 of the Code of Civil Procedure, and that the judgment should be and the same is hereby affirmed.

I dissent. I cannot agree with that portion of the majority opinion which holds that Section 1026 of the Probate Code is the only statute here involved; that the provision that a nonresident alien ‘appear and demand the property within five years from the time of succession’ neither contemplates nor requires a proceeding of any kind to perfect his title, and that therefore section 354 of the Code of Civil Procedure does not apply.

It cannot be denied that sections 1026 and 1027 of the Probate Code are related statutes and as such must be, under well-established rules, ‘construed together and harmonized if possible.’ Ebert v. State, 33 Cal.2d 502, 509, 202 P.2d 1022, 1026. Thus, in accordance with such rule, it has been held that ‘when a word or phrase has been given a particular scope or meaning in one part or portion of a law it shall be given the same scope and meaning in other parts or portions of the law and particularly of the same section thereof.’ Ransome-Crummey Co. v. Woodhams, 29 Cal.App. 356, 360, 156 P. 62, 64.

The pertinent provisions of section 1027 are that when an ‘estate or any portion thereof’ has been distributed to the State of California the property so distributed shall be held for a period of five years ‘from the date of the decree making such distribution’ within which time any person may appear in the Superior Court of the County of Sacramento and ‘claim the estate’ or any part thereof, that said court shall have ‘full and exclusive jurisdiction to determine the title to said property and all claims thereto’ and that if one does not so ‘appear and claim’ the property within five years he ‘shall be forever barred’. However, section 1027 provides further that if the claimant be a nonresident alien his rights ‘shall be governed by the provisions of Section 1026 of this code’, which section provides that a nonresident alien ‘who becomes entitled to property by succession’, must ‘appear and demand’ the property within five years from the ‘time of succession’; otherwise his ‘rights are barred’.

It is to be noted that the predecessor of section 1026, Civil Code section 672, used the same wording as section 1027. That is, the nonresident alien must ‘appear and claim’ the property. When that section was transferred to the probate code the words ‘appear and demand’ rather than ‘appear and claim’ were used. According to Black's Law Dictionary, Third Edition, ‘appear’ means ‘To be properly before a court.’ ‘Demand’, by that same authority, is defined as being ‘A claim; the assertion of a legal right; a legal obligation asserted in the courts.’ Thus ‘appear and demand’, as used in 1026, must mean to come regularly before a court for the purpose of asserting therein a legal claim to something. Therefore, it can not be said that because of the change of wording from ‘appear and claim’ to ‘appear and demand’ the Legislature thereby intended to change the requirement of coming regularly before a court. But in any event, both wordings contemplate an ‘appearance’. See California etc. Co. v. Superior Court, 13 Cal.App. 65, 108 P. 882.

Since both sections relate to the same general subject matter they come within the rule of construction previously mentioned and therefore must be read in conjunction with each other in order to harmonize and give full effect to all of the provisions contained therein. From the analysis of the history and definitions of the terms used in the two sections previously set forth, it would appear that the only apparent difference between the two sections relates solely to the time within which the two different classes of heirs must ‘appear and claim’ or ‘appear and demand’ the property, that is, from the date of succession, under 1026, or the date of distribution, under 1027. When so construed, it would also appear that 1027 is the procedural section which sets forth the procedure to be followed by both classes of heirs in order to perfect their title.

When Gerasimos Caravas died on September 30, 1941 his mother was living in Greece. Italy had attacked Greece in the fall of 1940 and in April of 1941 German armies had invaded her country. After the German conquest of Greece it was in turn blockaded by the British Navy and with this country's declaration of war upon Germany in December, 1941, it became enemy territory. Thus Greece was cut off from the outside world from the fall of 1941 until her liberation in the latter part of 1944. During this time all residents of Greece became technical enemies of this country under the Trading with the Enemy Act (Section 2). Under the provisions thereof residents of the United States were prohibited from sending communications to residents of Greece and under Section 3(c) thereof the Greeks in turn were prohibited from cummunicating with anyone in this country ‘except in the regular course of the mail’. Since no regular course of mail existed during that period by virtue of the order of the United States Post Office Department, which suspended all service to Greece as of November 26, 1941 (Postal Bulletin No. 18334) until the order resuming partial service of November 20, 1944 (Postal Bulletin No. 18773), it would have been impossible for her to have communicated with anyone in this country.

The case of State v. Smith, 70 Cal. 153, 12 P. 121, upon which the majority relies for the proposition that no legal action of any kind is required to perfect title under section 1026, is not inconsistent with this conclusion. In that case John Smith died in Sacramento, his only heirs being natives and residents of England. One of them, John Smith, Jr., came to California and obtained letters of administration upon the estate after having declared his intention to become a citizen of the United States. The property was distributed to those heirs and the administration closed. Suit was subsequently commenced by the Attorney General to declare the estate escheated because, as alleged, the nephews and nieces could not inherit in California. Judgment was given for defendants, thereby deciding only that a nonresident alien is entitled to inherit under California law. The theory of the action was that a nonresident alien was not eligible to take property by succession under California law and the facts show the estate was distributed to said nonresident aliens after probate proceedings. Hence the statement of the court to the effect that a nonresident alien could ‘appear and claim’ the property in compliance with Civil Code section 672 (the predecessor of Probate Code section 1026) by a claim ‘in pais, as by taking possession of the property, or conveying or contracting with respect to it’ must be considered as dicta.

Furthermore, I find nothing in the Estate of Laurence, 84 Cal.App.2d 500, 191 P.2d 109, or in the Estate of Pendergast, 143 Cal. 135, 76 P. 962, which is to the contrary. In the Laurence case the question related to the sufficiency of the showing of the appearance by a nonresident heir. In the Pendergast case the question related to the rights of other heirs to succeed to the interests of nonresident heirs whose rights were barred by their failure to appear and claim their share of the estate within the statutory period. The determination in both cases (if it be so considered rather than dicta) that section 1026 attaches a condition subsequent to the right of succession of a nonresident alien is not inconsistent with my conclusion that section 354 applies in a proper case.

If, then, Foteini, to perfect her right to the property to which she had succeeded in this State, was compelled to ‘appear and demand’ in the Superior Court of this county, was the running of the five-year period tolled by her disability to do so by reason of her being a nonresident alien under the facts above summarized.

As I read the majority opinion, it is conceded that if an appearance and commencement of any legal action were necessary section 354 would apply. But, says the majority, because the requirement of appearance and demand in section 1026 does ‘not contemplate or require the commencement of any legal action’ the provisions of such section do not apply.

Respondent adds a further argument in this regard, which is that, even if section 1026 does contemplate a ‘proceeding’ it is not an ‘action’ within the meaning of section 354. This argument fails to consider the provisions of section 363 of the same code, wherein it is specifically stated that the ‘word ‘action’ as used in this title is to be construed, whenever it is necessary so to do, as including a special proceeding of a civil nature.' Furthermore, in the Estate of Knauft, 59 Cal.App. 536, 538, 211 P. 29, 30, it was held that ‘While this section [354] is a part of the chapter devoted to provisions respecting the time of the commencement of actions, in its nature it deals with the general subject of disability within the particular classes defined, and is, for that reason, in its nature applicable to proceedings in probate.’

In discussing the Knauft case the majority opinion refers with approval to the argument of respondent wherein it is stated that the case has no applicability here since the court was there confronted with the question of the right of German aliens who had instituted a contest of a will after the period for filing the same had expired and that they were entitled to maintain their contest because a disability prevented assertion of their rights when they arose. In other words, the majority would distinguish between the situation where one must first take some action to establish a right (will contest) from where one must take some action to preserve a vested right already established (succession to property). As the Attorney General of the United States succinctly asks in his amicus curiae brief: ‘What possible reason can there be for suggesting that, when the bringing of an action is a condition precedent to the acquisition of a right, the alien who is disabled by war from prosecuting the action will be safeguarded, but that, when the alien already has a vested interest, the law will suffer it to be destroyed when the law prevents him from filing papers or taking some similar step to preserve it?’

Certainly if the same facts would not have barred Foteini from bringing a will contest in this State to establish her right to a portion of the estate because of her admitted disability such condition should likewise toll the running of the statute against her right to assert what the State of California had already conferred upon her. State of Maryland, to Use of Burkhardt, v. U. S., 4 Cir., 165 F.2d 869, 1 A.L.R.2d 213. In Scarborough v. Atlantic Coast Line R. Co., 4 Cir., 178 F.2d 253, 259, 15 A.L.R.2d 491, the court, in commenting on a similar contention, said:

‘* * * the distinction between a remedial statute of limitations and a substantive statute of limitations is by no means so rock-ribbed or so hard and fast as many writers and judges would have us believe. Each type of statute, after all, still falls into the category of a statute of limitations. And this is none the less true even though we call a remedial statute a pure statute of limitations and then designate the substantive type as a condition of the very right of recovery. There is no inherent magic in these words. * * *

‘Here the proper approach is not technical and conceptualistic. Rather, we think it should be realistic and humane. The spirit, not the letter, should control.’ See State of Maryland, to Use of Burkhardt, v. U. S., supra.

But, even assuming the majority opinion to be correct in its holding that no proceeding is required under our statutes to perfect the vested inheritance of a nonresident alien, or that if a proceeding is required it is not such a one that section 354 is applicable thereto, it does not necessarily follow that the time within which such alien must appear and demand is not extended by the disability of war. Limitation statutes are not enacted in contemplation of war. They are enacted in contemplation of continuing peace. War is but one of the exceptions which tolls the running of the statute. It seems obvious to me the consent to maintain an action or to appear and demand must of necessity contemplate that the consent so given means the right so to do in a court which is open for such proceedings. This conclusion is compelled both by principles of equity and by a realistic appraisal of the reasons underlying the precept that war suspends limitation statutes of all types. Additionally, such conclusion also is substantiated by the common law on the subject, which would be controlling if we had no applicable statute. Civil Code, section 4.

In Frabutt v. New York, Chicago & St. Louis R. Co., D.C., 84 F.Supp. 460, 464, the court said:

‘* * * The rule suspending the running of limitations during war is one of international law which the courts attach to, or read into, statutes of limitations, though it is not expressed in them; and it is applicable irrespective of whether the limitation in the particular statute of limitations is considered to be a limitation of the right or liability, or of the remedy.’

It was further held in Osbourne v. U. S., 2 Cir., 164 F.2d 767, 769, where a comparable issue was raised:

‘Neither do we think that distinction should be made because of the type of statute of limitations involved. All statutes of limitation are based on the assumption that one with a good cause of action will not delay bringing it for an unreasonable period of time; but, when a plaintiff has been denied access to the courts, the basis of the assumption has been destroyed. Whatever the reasons for describing this type of statute of limitations as substantive rather than procedural—and we suspect the chief reason was to make the period of limitation named in the statute, rather than that of the forum, control in cases brought in state courts—we think we do the distinction no violence by holding that either type of statute will toll for one who is a prisoner in the hands of the enemy in time of war.’

For the foregoing reasons I would reverse the judgment.

SCHOTTKY, Justice pro tem.

ADAMS, P. J., concurs.