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District Court of Appeal, Second District, Division 1, California.

IN RE: the ESTATE of S. P. A. SORENSON, Deceased. Ben H. BROWN, Public Administrator, Petitioner and Respondent, State of California, Petitioner and Respondent, James P. McGranery, Respondent, v. Petra SORENSON, Contestant and Appellant.

Civ. 20252.

Decided: November 29, 1954

Danielson & St. Clair, Los Angeles, for appellant. Edmund G. Brown, Atty. Gen., and John F. Hassler, Jr., Deputy Atty. Gen., for respondent, State.

S. P. A. Sorenson died intestate in Los Angeles June 25, 1934. He was survived by three sisters and a brother, his heirs and next of kin. All of them were nonresident aliens within the meaning of Section 1026 of the Probate Code.

It was not until 1949 that it was discovered that Mr. Sorenson had to his credit $1,152.57, principal and interest, in two bank accounts.

Thereupon the Public Administrator commenced proceedings to probate the estate. Upon petition for distribution, the Superior Court held that the money escheated to the State of California, because no claim had been made on behalf of the nonresident aliens as required by the code.

Therefore, the only question on this appeal is whether or not the sisters and brother, or their heirs, may be relieved from the provisions of Section 1026 of the Probate Code, which are as follows:

‘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 and the property shall be disposed of as escheated property.’

This code section was enacted in 1933. Before that the same rule was set forth in Section 672 of the Civil Code:

‘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.’

Language to the same effect is to be found in Section 1404 of the Civil Code, superseded by Section 1700 of the Probate Code.

In the case law we find it has been held that unless nonresident aliens appear and demand their property within five years of the date of death, title passes to the state. Estate of Laurence, 84 Cal.App.2d 500, 191 P.2d 109; Estate of Meyer, 107 Cal.App.2d 799, 238 P.2d 597. In Estate of Pendergast, 143 Cal. 135, 76 P. 962, our Supreme Court said that the code provisions were clear and unambiguous, and that if a nonresident alien takes by succession he must appear and claim the property within five years from the date of succession or be barred.

Appellant contends that these authorities were overruled in Estate of Caravas, 40 Cal.2d 33, 250 P.2d 593. Appellant argues that the word ‘appear’ in the code requires some legal proceeding within which a nonresident alien may assert his rights.

And it must be said that the rule applied by the Superior Court in this case is an exceedingly harsh one. These heirs had no notice of their rights until it was discovered in 1949 that the decedent had money in the bank. By that time their rights, of which they had no knowledge, had been gone for more than ten years.

When the Caravas case was in the District Court of Appeal, 247 P.2d 35, Mr. Justice Paul Peek in the Third District, in a dissenting opinion urged reversal of the judgment, which was based upon this construction of Section 1026 of the Probate Code. He pointed out that under this section to ‘appear and demand’ must of necessity be in a court which is open for such proceedings, and that that conclusion is compelled both by principles of equity and by a realistic appraisal of the reasons underlying the statutory law.

Thereafter our Supreme Court took over the Caravas case, and reversed the judgment. The Attorney General contends that that reversal was on grounds other than those urged by Mr. Justice Peek.

The ground of decision in the Caravas case was that the time to appear and demand under Section 1026 of the Probate Code was extended because the heir lived in Greece, Greece was occupied by German military forces, and, therefore, it was impossible for the heir to appear and present her claim.

It would seem that the same reasoning logically should be applied in this case. In this case the heirs had no knowledge of their rights in the estate of their deceased brother. So, therefore, it was impossible for them to appear and present their claim. When they were apprised of their rights they promptly appeared and made the necessary demand.

The order is reversed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.

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