IN RE: BEVILACQUA'S ESTATE. (1945)

This appeal is from an order granting the petition of the public administrator, and denying that of the appellant, for letters of administration.

The question presented for decision is as to the constitutionality of sections 259, 259.1 and 259.2 of the probate code, which impose conditions on the right of aliens who are not residents of the United States to take by will or succession under the laws of this state. The issue arose in a contest between the appellant, a first cousin of the decedent, and the respondent public administrator, over the right to administer the estate of Ignazio Bevilacqua. This decedent, a resident of San Francisco, died intestate on January 28, 1944, leaving an estate worth about $9000 in personal property. His next of kin are his widow and four adult children, all of whom are aliens and residents of Italy. The appellant's application for letters was based on the theory that the widow and children had been by these three sections cut off as heirs at law because they are Italian nationals resident in Italy, and that he, Pietro, a resident of California (and decedent's only relative in the United States) automatically became ‘The next of kin entitled to share in the estate’ (subd. 6, sec. 422, Probate Code) and therefore qualified to administer it. The public administrator's application was based on the theory that the sections are invalid because they violate the constitution of the United States and therefore that the five aliens are the heirs at law (and hence that Pietro cannot inherit). The judge took the latter view, and made an order granting letters to the public administrator (subd. 8, sec. 422, Probate Code) and it was from that order that this appeal was taken.

The only evidence at the hearing in probate was that produced by the appellant. No evidence whatever was presented touching the important question whether or not reciprocal rights of inheritance existed by treaty or otherwise. It is brought to this court's notice by the briefs that at the time sections 259, 259.1 and 259.2 were adopted there was no treaty in existence between the United States and Italy on the subject of reciprocal inheritance, and that there is none now.

The case has been ably briefed and we have had the benefit of two amici curiae briefs filed by the United States on the side of the respondent and one by the Attorney General of California on the side of the appellant. In the last brief filed by the United States we are told that on January 19, 1945, the Alien Property Custodian ‘vested all right, title, interest and claim in and to this estate of the wife and children of the decedent, who are nationals of Italy’ and that ‘at an appropriate time, a motion will be made * * * for leave to intervene.’ This would seem to place the Custodian, to all intents and purposes, in the shoes of the alien ‘heirs' in this litigation. That the Custodian has the power and authority to appear for foreigners who may turn out to be entitled to inherit is held in the recent case of Farmers & Merchants Nat. Bank v. Superior Court, 25 Cal.2d 842, 155 P.2d 823.

The three sections under attack read as follows:

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

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

Section 259.2: ‘If such reciprocal rights are not found to exist and if no heirs other than such aliens are found eligible to take such property, the property shall be disposed of as escheated property.’

The appellant contends that these sections are constitutional for the reason that the inheritance of property within a state is a matter with which that state, in the proper exercise of its sovereign powers, is alone concerned. He contends, further, that the Trading with the Enemy Act, 50 U.S.C.A. Appendix § 1 et seq., does not pretend to, and cannot possibly, affect or control the laws of succession within a state, but that it is concerned chiefly, if not entirely, with the sequestering or ‘capturing’ of property which belongs to, or has become vested in, alien enemies and which otherwise would get into their possession. The Attorney General concurs unreservedly in these views.

The respondent and the government take the position that this legislation impinges seriously, and to an alarming extent, upon the powers and functions of the federal government, indeed that it not only embarrasses, but actually hinders and impedes, the war effort.

In the first place, the five alien ‘heirs', before the enactment of sections 259, 259.1 and 259.2, had at most but a hope or expectancy of inheriting from this decedent. They had no vested right in any sense, and the authority which confers a right of inheritance may abolish it at any time or impose conditions on its existence.

In Re Estate of Perkins, 21 Cal.2d 561, 569, 134 P.2d 231, 236, the court says: ‘Since the right of inheritance is not an inherent or natural right but one which exists only by statutory authority, the law of succession is entirely within the control of the Legislature. [Citing cases.] The designation of heirs and the proportions which they shall receive are subject to the legislative will, * * * and until the death of the ancestor, the right of inheritance is not a vested one but a mere expectancy [citing cases].’ See also 9 Cal.Jur. 450, 451; 16 Am.Jur. 777–780; and 26 C.J.S., Descent and Distribution, §§ 2–6, pp. 996–1004. While the foregoing is a concise statement of the law of this state, as well as of the law generally, in view of the fact that the attack on this legislation is based on a claimed violation of the federal constitution, it is not inappropriate that inquiry should be directed as well into the federal authorities. The cases relied on by the appellant show that the Supreme Court of the United States has made unequivocal pronouncements which square with those of our own courts in favor of the exclusive right and power of the states to determine by their own legislation how property within their own boundaries shall descend by inheritance on the death of one of their own residents.

Mager v. Grima et al., 49 U.S. 490, 503, 8 How. 490, 503, 12 L.Ed. 1168, one of the leading cases on this subject, is singularly apt because it involves the taxability of the legacy of an alien. There the state of Louisiana enacted a law imposing a tax of 10% on legacies, inheritances and gifts to aliens not residing in the United States. In upholding its constitutionality the court said (49 U.S. at pages 492, 493, 8 How. at pages 492, 493, 12 L.Ed. 1168): ‘Now the law in question is nothing more than an exercise of the power which every state and sovereignty possesses, of regulating the manner and term[s] upon which property real or personal within its dominion may be transmitted by last will and testament, or by inheritance; and of prescribing who shall and who shall not be capable of taking it. Every state or nation may unquestionably refuse to allow an alien to take either real or personal property, situated within its limits, either as heir or legatee, and may, if it thinks proper, direct that property so descending or bequeathed shall belong to the state. In many of the States of this Union at this day, real property devised to an alien is liable to escheat. And if a State may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy.’ (Emphasis ours.) That case, decided in 1850, has been consistently followed ever since. As recently as 1942, in Irving Trust Co. v. Day, 314 U.S. 556, 62 S.Ct. 398, 401, 86 L.Ed. 452, 137 A.L.R. 1093, the court said: ‘Rights of succession to the property of a deceased, whether by will or by intestacy, are of statutory creation, and the dead hand rules succession only by sufferance. Nothing in the Federal Constitution forbids the legislature of a state to limit, condition, or even abolish the power of testamentary disposition over property within its jurisdiction. Mager v. Grima, 8 How. 490, 12 L.Ed. 1168; United States v. Fox, 94 U.S. 315, 24 L.Ed. 192; United States v. Perkins, 163 U.S. 625, 16 S.Ct. 1073, 41 L.Ed. 287; cf. Randall v. Kreiger, 23 Wall. 137, 148, 23 L.Ed. 124 [126]. Expectations or hopes of succession, whether testate or intestate, to the property of a living person, do not vest until the death of that person.’ (Emphasis ours.) In 1944 the court said in Demorest v. City Bank, etc., Co., 321 U.S. 36, 64 S.Ct. 384, 391, 88 L.Ed. 526: ‘Rights to succession by will are created by the state and may be limited, conditioned, or abolished by it.’ It is interesting to note that in United States v. Fox, supra, a devise of real property in New York to the United States was held invalid under the laws of that state. And in United States v. Perkins, supra, the state of New York had imposed an inheritance tax on a legacy to the United States. It was held that, under the laws of that state, the legacy was taxable, the court saying [163 U.S. 625, 16 S.Ct. 1075]: ‘The legacy becomes the property of the United States only after it has suffered a diminution to the amount of the tax, and it is only upon this condition that the legislature assents to a bequest of it.’ (Emphasis ours.)

It is true, as the respondent observes, that most of these cases deal with inheritance taxes, but a glance at them shows that the rationale of each of them is the exclusive right and power of a state to limit, condition, or even abolish the right of inheritance. No authority running counter to these decisions has been forthcoming, and we are satisfied none is to be found.

The respondent and the United States present many grounds upon which they contend this legislation is invalid. Perhaps the broadest ground urged by the respondent is that the three sections are not laws of succession at all. Counsel say: ‘Although incorporated in the Probate Code, the primary purpose of the sections in question is to control the transmission of estate funs and property between the United States and foreign countries' which purpose (they argue) is disclosed by the statement of the emergency whereby these sections went into immediate effect. Elsewhere, the respondent says: ‘Section 259 is therefore expressly declared to have been enacted as a limitation on the export of money and property to foreign countries, and by thus regulating foreign commerce, to protect the United States from ‘a war that eventually may be directed against the Government of the United States.’' The United States makes the same contention as follows: ‘The declared considerations bringing the statute into effect [referring to the statement of the reasons for the urgency] and the considerations making it operative or inoperative to change the course of devolution of property upon the death of the owner are all matters relating to foreign affairs. The operation and effect of the statute is inextricably enmeshed in international affairs and matters of foreign policy. The statute does not work disinheritance of, or affect ownership of property in California by, any group or class, but on the contrary operates in fields exclusively for, and pre-empted by, the United States; namely, the control of the international transmission of property, funds, and credits, and the capture of enemy property. The statute is not an inheritance statute, but a statute of confiscation and retaliation.’ From this it is plain to be seen that counsel base their attack largely on the statement of urgency, Section 2 of chapter 895, Statutes of 1941, which reads: ‘This act is hereby declared to be an urgency measure necessary for the immediate preservation of the public peace, health and safety within the meaning of Section 1 of Article IV of the Constitution of the State of California, and shall take effect immediately. The following is a statement of the facts constituting such necessity: A great number of foreign nations are either at war, preparing for war or under the control and domination of conquering nations with the result that money and property left to citizens of California is impounded in such foreign countries or taken by confiscatory taxes for war uses. Likewise money and property left to friends and relatives in such foreign countries by persons dying in California is often never received by such nonresident aliens but is seized by these foreign governments and used for war purposes. Because the foreign governments guilty of these practices constitute a direct threat to the Government of the United States, it is immediately necessary that the property and money of citizens dying in this country should remain in this country and not be sent to such foreign countries to be used for the purposes of waging a war that eventually may be directed against the Government of the United States.’

This statement of course is not itself legislation. It is simply the explanation required by the state constitution why sections 259, 259.1 and 259.2 should become operative immediately rather than 90 days after the adjournment of the legislature. It is settled law in this state ‘that, in passing upon the constitutionality of a statute, the court must confine itself to a consideration of those matters which appear upon the face of the law, and those facts of which it can take judicial notice. If the law, when thus considered, does not appear to be unconstitutional, the court will not go behind it, and by a resort to evidence undertake to ascertain whether the legislature in its enactment observed the restrictions which the constitution imposed upon it as a duty to do, and to the performance of which its members were bound by their oaths of office. * * * This view * * * is in harmony with the central idea of the constitution in prescribing the independence and equality of the three great departments of the state.’ Stevenson v. Colgan, 91 Cal. 649, 652, 27 P. 1089, 1090, 14 L.R.A. 459, 25 Am.St.Rep. 230. In Davis v. County of Los Angeles, 12 Cal.2d 412, 420, 84 P.2d 1034, 1039, an attack was made upon the declaration of urgency, and the court held, following Stevenson v. Colgan, that ‘the law makers in the process of enacting laws must pass upon all questions of expediency, necessity and fact connected therewith.’ Hence, whatever reasons were before the legislature for the enactment of these three sections, or for putting them into operation immediately, were the legislature's own reasons, and they cannot be inquired into, questioned or reviewed by the courts. Conceding, of course, that the courts take judicial notice (see Stevenson v. Colgan) of the statement of urgency, still such statement cannot be used to impeach the substantive legislation to which it is but an appendage. Granting that it expresses the motives which impelled the legislature to enact the law, it is nevertheless settled law that those motives ‘cannot be made a subject of judicial inquiry for the purose of invalidating or preventing the full operation of the law.’ Lukens v. Nye, 156 Cal. 498, 505, 105 P. 593, 596, 36 L.R.A.,N.S., 244, 20 Ann.Cas. 158. In Plum v. State Board of Control, 51 Cal.App.2d 382, 385, 124 P.2d 891, 892, it is said: ‘When the legislature enacts a law, the courts must take it as it is passed. They cannot go behind it, inquire the motives which prompted it, or interpret it as those who voted it believed it to be. When a bill has been passed by the legislature and signed by the Governor, it becomes a law, and ‘no evidence, nor the judgment of any court, can be allowed to modify or change its terms or effect, or prevent or impair its complete operative force.’ Lukens v. Nye, 156 Cal. 498, 105 P. 593, 595, 36 L.R.A.,N.S., 244, 20 Ann.Cas. 158.'

The language of the three sections shows the clear legislative intent to do that which the authorities cited earlier hold the legislature can rightfully do by way of ‘limiting’ or ‘conditioning’ inheritances. We find the contention that the sections are not laws of succession to be wholly without merit. The argument on the respondent's side is simply an invitation to the court to go out of its way to hold these sections unconstitutional not because of what they say, but because of what the statement of urgency says. The court's duty lies in the opposite direction. 5 Cal.Jur. 611; 5 McKinney's Dig. 144.

The commerce clause: The respondent's contention that these sections violate the commerce clause is within the general scope of the argument just discussed. The respondent argues that: ‘Succession cannot be made dependent on a compliance with conditions which operate as regulations of foreign commerce, or on any condition of an international character. The power to regulate foreign commerce is exclusively reserved to the Congress * * *. Section 259 was enacted for the express purpose of controlling the transmission of estate funds between foreign countries and the United States, i. e., to regulate foreign commerce arising from the estates of decedents, and to thereby prevent foreign countries from seizing estate funds or wage war on the United States. Such attempted regulation is invalid even if it is interwoven with, or made a part of a law of succession. Foreign commerce cannot be regulated by laws of succession or any other state laws.’ In developing this argument counsel devote many pages of their briefs and cite upwards of 35 cases on the general subject of interstate and foreign commerce, such cases dating all the way from 1824, Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (a case dealing with navigation) down to the recent case of United States v. Southeastern Underwriters' Ass'n, 322 U.S. 533, 64 S.Ct. 1162, 88 L.Ed. 1440 (a case dealing with fire insurance). These cases discuss and decide what is, and what is not, ‘commerce’ and deal with subjects as varied in range as the cases are numerous. Not one of them, however, holds that property passing by will or descent is commerce within the purview of the commerce clause, and nothing would be gained by reviewing them herein. On the other hand it has been held by the highest authority that property passing by will or descent to a beneficiary in a foreign country is not commerce within the meaning of the commerce clause. In Mager v. Grima et al., supra, the only points made by the plaintiff in error (see 49 U.S. 491, 492, 12 L.Ed. 1168) were that the Louisiana inheritance tax law was (1) an attempted regulation of foreign commerce (the legatee lived in France) and (2) a tax on exports. The court disposed of these contentions as follows: ‘We can see no objection to such a tax, whether imposed on citizens and aliens alike, or upon the latter exclusively. It certainly has no concern with commerce, or with imports or exports. It has been suggested, indeed, in the argument, that, as the legatee resided abroad, it would be necessary to transmit to her the proceeds of the portion of the estate to which she was entitled, and that the law was therefore a tax on exports. But if that argument was sound, no property would be liable to be taxed in a State, when the owner intended to convert it into money and send it abroad.’ (Emphasis ours.)

The respondent and the United States claim that this legislation invades the treaty-making powers of the United States. The respondent says: ‘Section 259 violates Section 10 of Article I of the Federal Constitution forbidding states to enter into treaties, alliances or confederations, and necessarily prevents states from exacting reciprocal rights from foreign countries in exchange for concessions as to succession.’

By this legislation California did not exact ‘reciprocal rights from foreign countries in exchange for concessions as to succession.’ Our legislature simply provided that if reciprocity existed foreign heirs could inherit under our laws, otherwise not. This, it is true, imposed a condition on inheritance under California laws but the authorities already cited hold that this is permissible.

At the time when these three sections were enacted and at the time of decedent's death there was no treaty in effect between the United States and Italy touching on rights of inheritance. This is conceded by both sides. The appellant informs us that the earlier treaty terminated on December 15, 1937. The respondent adds that ‘a new treaty was in the course of preparation—one article having been agreed upon and ratified when war was declared.’ The instant case, therefore, is free from and uncomplicated by any treary question.

In the brief of the United States we are told that at the time when these three sections became effective the United States had dealt specifically with reciprocal inheritance rights in treaties then in effect with 22 foreign nations, and that since then 4 other nations have been added. The list of these 26 foreign nations shows Germany and Japan among them, but not Italy.

In the brief of the United States we are told that ‘So far as we are aware, on July 1, 1941, there was no civilized nation which did not grant to citizens of the United States the right to inherit from its nationals, with limitations, however, upon the inheritance of real property.’ If this be true the apprehensions so frequently expressed on the side of the respondent should be greatly minimized if not entirely dissipated. In spite of this, counsel say ‘Though we are now at war, Chapter 895 is still a possible source of embarrassment to the United States with respect to neutral countries and our allies. With respect to our enemies, Chapter 895 is not a potential embarrassment, but rather a direct impediment to the United States in its prosecution of the war.’ Just how any embarrassment could arise in our country's dealings with a neutral country or an ally is not explained or developed by counsel. It is difficult to see how, if reciprocal rights of inheritance exist (as we are told they do), there can be any such embarrassment. And if such reciprocity does not exist, it is not easy to see how a neutral or allied nation could within reason expect more for its nationals than its laws give to ours. The statement that this legislation is ‘a direct impediment to the United States in its prosecution of the war’ is even more difficult to understand. Without more of an explanation than has been vouchsafed, we are not convinced either on the count of ‘embarrassment’ or on the count of outright ‘impediment’.

If the important subject of reciprocal inheritance is one which can be covered only by treaty, then the sections in question present no procedural or other difficulty, for courts are bound to take judicial notice of the existence or non-existence of treaties. Code Civ. Proc. sec. 1875; United States v. Rauscher, 119 U.S. 407, 419, 7 S.Ct. 234, 30 L.Ed. 425. That being so, the rights of an heir living in a country with which the United States has a treaty can be easily and speedily established under section 1875 in any court where an estate is being administered. Presumably if this country and that in which the heir resides are at war, the Custodian would step into the shoes of the alien heir and sequester his inheritance. See Farmers & Merchants Nat. Bank v. Superior Court, 25 Cal.2d 842, 847, 155 P.2d 823 supra. That question, of course, is not before us. It is mentioned only to show the simplicity with which this legislation would operate in such circumstances. In the opening brief of the United States we are told that ‘at the appropriate stage of the proceedings herein, and if such proof should be necessary, it is expected that there will be offered in evidence on behalf of the widow and children of the decedent Article 16 of the Italian Civil Code of 1942, which grants foreigners the civil rights attributed to citizens on condition of reciprocity, including inheritance rights, and Article 312 of the Italian Law of War of 1938, which provides that no property may be transferred to an enemy in time of war except, inter alia, by inheritance.’

The record on which the present case has to be decided is silent both as to treaty and as to Italian statute law. The question presented on this record is solely as to the constitutionality of sections 259, 259.1 and 259.2. If the two Italian statutory provisions can be proved ‘at the appropriate stage of the proceedings'—which we assume means on a petition to determine heirship or for distribution—such result will prove nothing one way or the other with respect to the constitutionality of these sections. If reciprocity of inheritance may be established in the absence of proof of a treaty (see Re Estate of Blak, 65 Cal.App.2d 232, 150 P.2d 567) the claimant would proceed to prove the foreign law as a fact under Code Civ. Proc. sections 1901–1904 the burden being on him. Sec. 259.1, Probate Code. If the court before which such evidence is offered is satisfied that the Italian statutes by themselves, and without benefit of treaty, afford reciprocity within the meaning of sec. 259, presumably the condition imposed by sec. 259 will have been met. That point is not before us and of course we do not pass upon it. We mention it only to emphasize that if the probate court should so hold, that would not mean that this legislation is bad; it would simply mean that it operates according to design.

The pending problem is not, who should inherit Ignazio Bevilacqua's estate? It is, who should administer his estate on the present record?

The respondent and the United States claim that this legislation invades the war powers of the United States. The respondent says: ‘The sections violate Section 10 of Article I reserving to Congress the exclusive right to declare war, i. e., the control of moneys going to or coming from foreign countries to protect the United States from attack, constitutes engaging in a form of defensive warfare.’ Counsel for the United States say: ‘If construed so as to disinherit the widow and children of the decedent, the California statute is unconstitutional as an invasion of the exclusive powers of the federal government over foreign affairs and to make captures of enemy property.’ They say further that ‘The United States had already fully occupied the fields which the California statute sought to enter’ in that the Trading with the Enemy Act, 50 U.S.C.A.Appendix § 1 et seq., has ‘provided machinery for the capture of enemy property in times of war.’ This argument is elaborated and extended to show that ‘After the end of the war, the property so sequestered or captured will be available as a bargaining weapon at the peace conference, and as leverage to enforce compensation by or retribution upon the defeated enemy.’

There can be no question that, as argued, ‘the war powers of the United States, like is powers over foreign affairs, are exclusive’; nor that, under the Trading with the Enemy Act, the powers of the President, and of any agency designated by him, are far-reaching. But those powers extend, of course, only to ‘property in which any foreign country or a national thereof has any interest’; the act does not pretend to go any further than that. If we adhere to the rule of Mager v. Grima, and the cases which follow it, first discussed herein, we must consistently hold that the probate court erred in determining on the present record that any interest passed to the five Italian nationals.

We therefore cannot accede to the proposition that ‘the United States has preempted the field of foreign relationships concerning inheritance rights, with its programs of control of foreign funds and of vesting of property of enemy nationals, * * *.’ If the contention of the United States and the respondent were to be followed it would mean that upon the entry of the United States into a war the normal powers of the states to enact legislation, admittedly within their powers in times of peace, would be automatically curtailed. That such is not the law is indicated by such cases as Ex parte Milligan, 4 Wall. 2, 120, 121, 71 U.S. 2, 120, 121, 18 L.Ed. 281, where it is said: ‘The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances'; and State of South Carolina v. United States, 199 U.S. 437, 448, 449, 26 S.Ct. 110, 50 L.Ed. 261, 4 Ann.Cas. 737. We appreciate that the questions presented by these cases were far different from the question presented herein, but those cases announce the doctrine of the changeless nature of the constitution whether the nation be at war or enjoying peace-time and normal conditions. In the recent case of Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 425, 54 S.Ct. 231, 235, 78 L.Ed. 413, 422, 88 A.L.R. 1481, it is said: ‘Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.’

The respondent and the United States invoke the presumption that the law of an outside state or country is the same as the law of California, and hence that in the absence of any affirmative showing in this case Italian laws of inheritance must be held to be the same as ours. The legislature, in providing in section 259.1 that ‘The burden shall be upon such nonresident aliens to establish the fact of existence of the reciprocal rights * * *’ showed clearly, in our opinion, its intent that said presumption should have no application in cases arising under section 259. Otherwise the provisions of section 259.1 are meaningless. It is settled law that statutes ‘which cast the burden of proof in an issue upon either party to the action, are within the constitutional power of the legislature.’ McDonald v. Conniff, 99 Cal. 386, 390, 34 P. 71, 73 (citing Cooley's Constitutional Limitations, 450); Clarke v. Mead, 102 Cal. 516, 519, 36 P. 862 (citing Marx v. Hanthorn, 148 U.S. 172, 181, 13 S.Ct. 508, 37 L.Ed. 410). In People v. Ellis, 206 Cal. 353, 357, 274 P. 353, 355, it is said: ‘When the law provides on whom shall rest the burden of proof, it establishes a rule as to which party shall first proceed and go forward with the evidence, or prove the issue, the presumption then being against the party having the burden of proof. 22 Corp.Jur. 83.’ And in Monterey County v. Cushing, 83 Cal. 507, 510, 23 P. 700, 701, the court stated the familiar rule that ‘If no direct evidence be introduced upon any issue, the finding should be against the party who had the burden of proof. [Citing cases]. To say that the burden of proof is upon a party is equivalent to saying that the presumption is against him.’ In addition to what has been said, this court in Re Estate of Michaud, 53 Cal.App.2d 835, 128 P.2d 595, in a contest similar to that now presented, applied section 259.1 and held that before the public administratrix could show a right to administer the estate she must first show that the foreign ‘heirs' were entitled to inherit—that was her burden.

What has just been said likewise, in our opinion, answers the argument advanced by the United States in its closing brief that this inheritance should vest in the five Italian nationals subject to a defeasance. Section 259.1 casts the burden in the first instance upon the foreign ‘heirs' of showing their right to inherit.

With respect to the respondent's claim that the appellant's right to letters of administration was not established because he did not prove that the person under whom he claims was not an alien, or at least was an alien entitled to inherit, it is sufficient to say that these sections impose no such condition. When section 259.2 says ‘no heirs other than such aliens' it undoubtedly means ‘aliens not residing within the United States or its territories' for it is with the rights of only such aliens as these that section 259 deals. See also In re Estate of Michaud, supra. Section 259 does not pretend to limit the rights of resident aliens.

We find no merit in the respondent's claim that these sections violate the fourteenth amendment.

Other points raised by the respondent are answered by the views already expressed that the rule of Mager v. Grima et al., and the cases following it, is decisive of this case.

In their opening brief counsel for the United States cite Crowley v. Allen, D.C., 52 F.Supp. 850, which held the sections in question to be unconstitutional. Since the brief was filed that case was reversed in Allen v. Markham, 9 Cir., 147 F.2d 136. On May 28, 1945, however, a petition for a writ of certiorari was granted (65 S.Ct. 1402, 89 L.Ed. 1969) so the subject is at large as far as the federal courts are concerned.

In our opinion the court erred in holding that sections 259, 259.1 and 259.2 are unconstitutional, and that therefore the appellant was not entitled to letters of administration. On the present record the appellant appears to be an heir of the decedent ‘eligible to take such property’ and ‘The next of kin entitled to share in the estate’ subd. 6, sec. 422, Probate Code, and therefore entitled to administer it. In re Estate of Michaud, supra.

The order appealed from is reversed.

GOODELL, Justice.

NOURSE, P. J., and DOOLING, Justice pro tem., concur.