IN RE: the ESTATE of John LARKIN

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

IN RE: the ESTATE of John LARKIN, etc., Deceased. STATE of California, Appellant, Karlina Simson, Marie Simson Belte, Via Cecille Paxalinske, petitioners and Appellants, v. Baldo M. KRISTOVICH, Public Administrator, Respondent. In the Matter of the ESTATE of Liese Marie TERRY, etc., Deceased.

STATE of California, Appellant, Karlina Simson, Marie Simson Belte, Via Cecille Paxalinske, Petitioners and Respondents, v. Baldo M. KRISTOVICH, Public Administrator, Respondent.

Civ. 27934, 27935.

Decided: May 04, 1965

Stanley Mosk and Thomas C. Lynch, Attys. Gen., Elizabeth Miller, Deputy Atty. Gen., for the State. Harold W. Kennedy, County Counsel, Los Angeles County, for respondent Baldo M. Kristovich. Mosk & Rudman, Edward Mosk, Hollywood and Val Linton, Los Angeles, for appellants, petitioners and respondents Karlina Simson, Marie Simson Belte, and Via Cecille Paxalinske.

These appeals are from judgments of the Superior Court of Los Angeles County (consolidated by stipulation) determining the rights of nonresident aliens (Russian) to inherit.

John Larkin, also known as Ivan F. Larkin and John F. Larkin, died in Los Angeles County of April 8, 1960, leaving an estate appraised at $43,901.08, consisting, in part, of $26,000.00 in real property. The Public Administrator of Los Angeles County was appointed as administrator of Larkin's estate.

Thereafter a petition to determine the interests in the estate was filed by the assignee of a 25% interest in the estate. The assignment came from the alleged heirs at law of the decedent who were nonresident aliens, citizens and residents of the U.S.S.R. (Russian).1

Liese Marie Terry, also known as Marie S. Terry, died testate on July 8, 1960 in Los Angeles County and left an estate of personal property appraised at $9,945.07. The Bank of America was appointed executor of decedent's estate. A petition for a decree to determine an interest in the estate was filed by the sister of the decedent, who was also named to take under the will. The petition stated that all other named legatees were residents of the U.S.S.R., and that there was in existence at the time of death reciprocal rights of inheritance between citizens and residents of the United States and citizens and residents of the U.S.S.R. and, as required by the Probate Code,2 the estate should be distributed to the named legatees.

A statement of interest was filed on behalf of the State of California in both matters alleging that there were no reciprocal rights of inheritance on the part of citizens of the United States to take property upon the same terms and conditions as residents and citizens of the U.S.S.R. and the named legatees in Terry's Will and the heirs in the Larkin estate were not entitled to the property. The State also alleged there were no other heirs surviving and therefore the property should escheat to the State of California.

All matters were consolidated for trial and, after hearing testimony with reference to the issue of the right of the citizens of the U.S.S.R. to inherit, the court found that at the time of the deaths aliens in the U.S.S.R. were accorded equal rights of inheritance with citizens of the U.S.S.R. as to personal property as required by section 259 of the Probate Code, and the personalty in question should be distributed to the Russian citizens.

As to the real property, the court found that there were no individual rights to ownership of realty in the U.S.S.R. and, therefore, there were no reciprocal rights afforded to residents and citizens of the United States to take real property by succession or testamentary disposition and, as a consequence, the real property in question should escheat to the State of California. A judgment was thereupon entered in each case from which, in each instance, a party has filed a notice of appeal. The State asserts the court erred in distributing the personalty to the Russian heirs and the Russian heirs assert the court erred in escheating the realty to the State of California.

The right of nonresident aliens to take property in this State, real and personal, by succession or testamentary distribution is governed by section 259 of the Probate Code of the State of California. The right of said aliens to take is conditioned upon the existence of a reciprocal right upon the citizens of the United States to take property upon the same terms and conditions as the residents and citizens of that alien country.

The burden of proving the existence of such reciprocal rights is upon the nonresident aliens. (Probate Code, § 259.1.)

This court in this case is not bound by the findings of the trial court, but can make a de novo review. (Code of Civ. Proc. § 1875.)

The sole question is whether at the time of the death there was in the U.S.S.R. a reciprocal right to take property by succession or testamentary distribution granted to citizens and residents of the United States upon the same terms and conditions as citizens and residents of the U.S.S.R.

It was determined as of August 14, 1956, that there were no reciprocal rights of inheritance granted to United States citizens by the U.S.S.R. (Estate of Gogabashvele, 195 Cal.App.2d 503, 16 Cal.Rptr. 77.)

The Russian claimants contend that the Gogabashvele decision has no binding effect upon this court or the trial court, and that the doctrine of stare decisis should not apply. To require direct proof in subsequent litigation on the identical or substantially the same foreign law would involve a great deal of duplication of time and effort for the courts and litigants. More important is the fact that were we not to follow prior judicial decisions, we would create considerable confusion and doubt as to what the law is at any particular moment. There is even greater reason to apply the rule of stare decisis in an area such as probate and wills since a person should know what the law is before he can properly plan for the distribution of his property after death. The doctrine of stare decisis tends to give stability to our legal system that is so noticeably lacking in many other legal systems.

As Justice Herbert C. Kaufman stated: ‘The rule of state decisis rests on an obvious sense of justice as well as convenience. Laws to be obeyed or followed, must be known; to be known it must be fixed; to be fixed, what is decided today must be followed tomorrow, and that is all stare decisis means. * * *

‘* * * there can never be equal justice under law if a rule is applied in the morning but not in the afternoon. Stare decisis serves to take the capricious element out of law and give stability to our society.’ (Kaufman, A Defense of Stare Decisis, 10 Hastings L.J. 283, 284.)

The claimants in this case had the right to attempt to prove that the prior decision (Gogabashvele) did not correctly state the content of the law in question, and they did so vigorously and extensively; however, they also had to overcome the presumption that the matter had been properly decided on the prior occasion.

The Russian claimants first attack the finding of Justice Griffin for the court in Gogabashvele to the effect that article 83 of the enacting law of the U.S.S.R. affords no protection of the rights of aliens to inherit in the Soviet Union. This result was reached after a thorough investigation and consideration of the contentions of the litigants in Gogabashvele where the Russians urged, ‘* * * that the section operates still as a restriction on the rights of the state to limit the rights of aliens and contains an implied grant of the right of inheritance, since it does not provide that such rights may be restricted by the state.’ (Estate of Gogabashvele, supra, 195 Cal.App.2d 503, 520, 16 Cal.Rptr. 77, 87.) This is exactly what the claimants in this case are asserting.

The court in Gogabashvele examined the authorities which allegedly stated (page 520, 16 Cal.Rptr. 77) ‘* * * that aliens do have the right to inherit property from Russian citizens' but still came to ‘* * * the conclusion that Section 8 of the Enacting Law affords no protection of the rights of aliens to inherit in the Soviet Union.’ (Pages 521–522, 16 Cal.Rptr. 88.)

The claimants' next assertion is to the effect that even if Gogabashvele did correctly state the law as it existed in 1956, there have been sufficient changes in the Russian laws to establish the existence of such reciprocal rights in aliens in the U.S.S.R. The first alleged change was in the 1959 publication of the 1955 decree which provides:

“The Council of Ministers of the U.S.S.R. decrees:

“(1) That funds in estates that are due to foreigners shall be freely transferred from the U.S.S.R. abroad, on condition that there is mutuality on the part of the correspondent foreign state.

“(2) That the Ministry of Finance of the U.S.S.R., * * * shall be commissioned to establish a procedure for transfer abroad of funds in estates.” (Gogabashvele, supra, p. 527, 16 Cal.Rptr. 92.)

It should be noted that not only was this decree considered in Gogabashvele, but it was rejected in that ‘[t]he wording of the decree does not assist us in determining what estates are due to foreigners * * *.’ (Gogabashvele, supra, at page 527, 16 Cal.Rptr. 92.)

Thus, this publication of the decree was of no significant moment to show any different circumstance than that which the court considered in Gogabashvele.

The next alleged change is in the movement toward condification and systemization of Soviet law. The claimants assert that the 1962 enactment, which is alleged to be a restatement of article 8, passed without debate and newspaper comment. They argue, had this been a significant change in Soviet law, it would not have passed unnoticed. This is nothing but pure speculation. Perhaps it would be just as speculative upon the part of this court if we were to state that comment by the Russian press may have been controlled or suppressed. However, it does appear that ‘* * * both Soviet and Western commentators agree that complete environmental control is a necessary condition on the Soviet scene and that the press is, for this purpose, an important adjunct of formal state institutions of education, investigation, control and supervision.’ (Ramundo, They Answer [to] Pravda, 1964 U.Ill.L.F. 103, 126.)

The Russian claimants next assert that since 1956 all publications of legal texts in Russia clearly state that foreigners do have equal rights. They assert that Soviet writers and jurists in many ways have greater significance than comparable writers in the United States by reason of the fact that the U.S.S.R. does not follow a concept of judicial precedent. This argument is best answered by the limitations the Russians themselves place on the distribution of their laws. ‘* * * the body of research on Soviet law is subject to marked limitations. Unquestionably practice often varies from theory, for access to legal materials is incomplete even for Soviet lawyers, let alone the vast body of informal decision makers and police. Yet the case data available for independent study are less than adequate. Since the 1920's only scraps of judicial statistics have even been indicated. Many legal questions, such as the actual legal positions of non-Russians, especially Moslems, in the USSR have received only superficial treatment. Legal studies have, in general, taken little account of social, demographic, economic and military contexts, and of administrative as well as juristic motivations for given practices. Conversely, sweeping psychological, social, and historical interpretations of an ill-defined aggregate of Soviet law have been too frequent. Moreover, even the wisest foreign observers have been able to anticipate of changes in the content or operation of Soviet law. Above all, the largely derivative nature of Soviet law, its frequent incompleteness, crudity and inconsistency, and its many inequities, deprive its study of much strength as a source of legal inspiration.’ (Emphasis added.) (Shimkin, Soviet Law and United States—Soviet Relations, 1964 U.Ill.L.F. 1, 36.)

The Russian claimants also presented the testimony of six recipients who testified as to the receipt of estates of deceased Russian citizens. Here again Gogabashvele answered the contention by stating ‘* * * that there is no such thing as a ‘right’ in the U.S.S.R. as we understand it in this country. Soviet statutes merely confer conditional rights or privileges which, being granted by the grace of the government, may be withdrawn without the consent of the citizens at the whim of the government. That the Soviet Union may, as a matter of practice, permit certain United States citizens to inherit from Soviet estates does not alter our opinion. Such a practice, granted and followed as a matter of expediency and shrewd business, does not establish an enforceable legal right on the part of American legatees.' (Page 528, 16 Cal.Rptr. 92.) Thus, such history in and of itself does not establish the ‘reciprocal right’ which is referred to in section 259 of the Probate Code.

Next, the Russian claimants argue that the 1957 decree of the Plenum of the Supreme Court allowing extension of the six-month period of time within which an absent heir must claim the estate shows the nondiscrimination of the Russians to foreign heirs. This may be true, but it does not establish any rights in a foreign heir to take the estate. The reissuance of the instruction to notify absent heirs is also asserted as establishing the right to take the estate of a deceased Russian. Here again no ‘rights' are established.

The fact still remains that an absent heir is not afforded the same rights as heirs present at the place where the estate is probated. Upon considering all of the factors and the evidence, we believe the Gogabashvele decision was correct and that there has been no significant change in the laws of the Soviet Union which establish a ‘reciprocal right’ in a resident and citizen of the United States to take personal property of a deceased Russian citizen. We concluded that the trial court erred in holding that the Russian heirs could take the personal property of the deceased American citizens and, assuming that there are no other heirs at law, we conclude that such property should escheat to the State of California.

As heretofore indicated, an appeal was taken by the Russian claimants from that protion of the judgment which determined that there were no reciprocal rights of inheritance in real property in the Soviet Union. This portion of the judgment was based, not upon the fact that there were no rights granted to aliens in the U.S.S.R., but upon the concept of ownership of land in the U.S.S.R.

This court follows the view that article 8 of the enacting clause of the Russian law does not grant to an alien in the U.S.S.R. any right of inheritance or rights of succession. If there were no established rights granted by article 8, there could be no inheritable or succession rights established in such property.

In Russia the government owns all real property and the citizens never take title to the land as in the United States. It was shown at the trial that a citizen of the Soviet Union could own a house, but could possess only title to the house and not to the land upon which the house rested. It is the contention of the Russian claimants that the issue of whether there is a reciprocal right is determined by whether United States citizens take property on the same terms and conditions as citizens of the Soviet Union would be entitled to take such property. In other words, it is said, in effect, that the fact that the quality of ownership is not equal to what would be received in the United States should not be considered by the court, but that the term ‘reciprocal’ as used in section 259 merely means equality, and that as long as the Russians do not favor their citizens over United States citizens, equality is granted and thus reciprocity of rights. However, to follow this view would allow the Russians to claim that there is equality if the Russian citizen could take nothing. Since an alien would receive the same rights, they would assert this to be equality and the necessary reciprocity. In order for reciprocity to have a logical meaning, it must be held to be a corresponding and reciprocal right in the same quality and quantity that would be enjoined by ownership of land in the United States. To allow the Russian government to acquire the title to real property owned by a deceased resident or citizen of the United States would result in that which this statute originally sought to prevent. To allow property left to citizens of Russia to reach the Russian government is the evil this statute seeks to prevent. (Estate of Karban, 118 Cal.App.2d 240, 244, 257 P.2d 649.)

The Russians assert that a holding to the effect that there is no right in a Russian citizen to inherit real property located in the United States would be a denial of the due process and equal protection clause of the Fourteenth Amendment and an infringement upon the Federal Government's plenary power over foreign relations.

In Terrace v. Thompson, 263 U.S. 197, 44 S.Ct. 15, 68 L.Ed. 255, it was held that to deny aliens the right to own land within a state was not a denial of the due process or equal protection clause of the Fourteenth Amendment. Therefore, to deny the right to inherit land in the State of California to a nonresident alien could not violate any such rights. In Clark v. Allen, 331 U.S. 503, 67 S.Ct. 1431, 91 L.Ed. 1633 (1947), the Supreme Court held that in the absence of treaty, the State may properly regulate the disposition of property within that State owned by one of its citizens or residents at the time of his death. There being no applicable treaty covering this problem, the State may properly regulate this subject matter. There does not appear to be any conflict between the State's right to regulate the disposition of this property and the plenary power of the Federal Government to operate in the area of foreign relations. There is no existing Federal policy which is in conflict with this State statute and, thus, no basis for it to be stricken.

In view of the above, this court holds that, as of April 8, 1960, and July 8, 1960, there were no reciprocal rights of inheritance granted to the United States residents and citizens by the Soviet Union to inherit real or personal property.

TERRY ESTATE: Our Number 27935:

The judgment which decrees that there existed at the time of decedent's death reciprocal rights of inheritance within the provisions of section 259, Probate Code of the State of California, as to personal property is reversed. The estate shall escheat to the State of California.

LARKIN ESTATE: Our Number 27934:

That portion of the judgment which decrees that there existed, at the time of decedent's death, reciprocal rights of inheritance within the provisions of section 259, Probate Code of the State of California, as to personal property is reversed.

That portion of the judgment which decrees that no reciprocal rights of inheritance existed within the provisions of section 259, Probate Code of the State of California, as to real property is affirmed. The estate shall escheat to the State of California.

FOOTNOTES

1.  Whenever U.S.S.R. is used, it is an abbreviation for Union of Soviet Socialist Republics.

2.  Probate Code, section 259, reads as follows: ‘Right of nonresident aliens to take realty: Dependence or reciprocal rights. 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.’

3.  ‘LAW ENACTING R.S.F.S.R. CIVIL CODE ‘Section 8. ‘The rights of citizens of foreign countries with which the R.S.F.S.R. has entered into agreements of one kind or another, shall be regulated by such agreements. ‘Insofar as the rights of aliens are not provided for by agreements with the governments concerned or by special laws, the rights of aliens to move about freely within the territory of the R.S.F.S.R., to choose occupations, to open and to acquire commercial and industrial enterprises and rights in rem in buildings or in plots of land, may be restricted by order of the proper central organs of the government of the R.S.F.S.R., made in agreement with the People's Commissariat for Foreign Affairs (as amended November 23, 1922, Izvestiia No. 269, November 28, 1922).‘Note 1: Foreign stock companies, partnerships, et cetera, acquire rights of legal entities in the R.S.F.S.R., only by special grant from the government.‘Note 2: Foreign legal entities that are not authorized to conduct business in the R.S.F.S.R., enjoy in the R.S.F.S.R. courts, the right to sue defendants residing within the R.S.F.S.R on claims arising outside the territory of the R.S.F.S.R., but only on the basis of reciprocity.‘Resolution of the All-Russian Central Executive Committee, passed on October 31, 1922.’

FOURT, Justice.

WOOD, P. J., and LILLIE, J., concur.