*1 traveling card, membership upon presentation of a nor they changed position relied they have their shown that upon plaintiff’s injury. to their Plaintiff’s statement conduct way being his admitted that he was satisfied with accept- traveling subsequent card had and his been handled membership estop operate ance of the benefits of did not asserting him be- from which have accrued fore his admission. judgment is reversed. Edmonds, J., J., Schauer, J., Spence,
Shenk, J., Carter, J., concurred. May 26, In 18194. Bank. F. No. 1953.]
[S. ARBULICH, Estate of Deceased. JOHN CHARLES J. ARBULICH, JR., Appellant, v. THOMAS S. ARBU LICH, Respondent. *3 Hubbard, Schwabe, Hubbard & Peter A. Schwabe
Haas & Hayes Appellant. for and Emmet B. Respondent. for
Frank O’Brien J. hearings SCHAUER, Following petitions de- J. heirship probate court found that this estate termine (see 1947, of death of the decedent 21, on March the date Cal.App.2d 588, 594 (1948), 85 P.2d Estate Giordano [193 rights prescribed by reciprocal inheritance section 771]), the did not exist between residents and 259 of the Probate Code Yugoslavia as to either nation and those of citizens of this thereupon Judgment was entered personal property. real or surviving (re brother Thomas that decedent’s to the effect residing in and a citizen of the United spondent herein), estate, of decedent’s entire States, to distribution entitled surviving brother, John, who resides the exclusion of Yugoslavia. The two brothers are de and is a national contending appeals, heirs at law. John sole cedent’s finding support of nonreci is not sufficient to evidence ifwe, before us is not whether we were question The procity. greater find that initially, should viewing the evidence is, respondent but appellant favor or the weight seemed finding law the can hold that as matter of rather, whether we evidentiary sup is without substantial probate court of the be Every inference must drawn reasonable port. (Holmberg v. respondent. Marsden (1952), favor 417].) viewing evidence P.2d So 39 Cal.2d [248 appellant’s cannot be sus contention concluded that we have affirmed. judgment should be tained decedent, Arbulich, was a naturalized citizen Charles J. By his
of the United who died in San Francisco. States consisting of both real and estate, will he left his entire personal property, if the father survived the to his father brother, appellant testator, John otherwise to the testator’s predeceased Arbulich, Jr., Yugoslavia. The father Charles. appellant (by respondent
Both Thomas and John the Consul purports attorney- who John’s General in-fact) heirship, pro- and this petitions filed to determine ceeding followed. already indicated, question merits, on the is whether reciprocal supports the court’s
the evidence required provisions section 259 of the Probate by the Treaties, on March 1947.1 did exist Code statutes, evidence of the domestic law and other (1948), 573, 579 (Estate Knutzen 31 Cal.2d be considered. *4 Bevilacqua (1948), 31 Cal.2d ; P.2d Estate [191 747] of 752].) or statute law 582 P.2d Where treaties [191 construction thereof is a matter the court the alone are before ‘ ‘ right that date: of aliens not 259 read as follows on The 1Seetion property residing United States or its territories to take real within the testamentary disposition, upon by in or the same this State succession is residents and citizens of the United States terms and conditions as dependent reciprocal right upon upon in of a the each case the existence upon property part real the same of citizens of the United States to take respective of countries conditions as residents and citizens terms and residing right aliens not which such aliens residents and the of in are or personal property in this United States its territories to take testamentary disposition, upon by or the same terms State succession dependent is as residents and citizens of the United States and conditions in reciprocal right upon part upon of a each case the existence property upon personal to take the same citizens of the United States respective as countries terms and conditions residents citizens presumed It shall be such of which such aliens are residents. reciprocal rights presumption and this shall conclusive unless exist be prior hearing any petition portion distribution of all or a to the on for property heir, legatee residing an or within of such alien devisee petition by any person its requesting is in the United States or territories filed in find the estate the court that either one or both terested reciprocal rights of such does not or do not exist as to the heir, legatee Upon hearing which such alien devisee or is resident. establishing petition the burden of the nonexistence of such of such reciprocal right rights upon petitioner. or shall be Notice of such given provided hearing in the manner Section 1200 shall be of this code.” September, 1947, by striking section 259 was Effective amended quoted At therefrom the last three sentences hereinabove. the same (added repealed in 1941 time section 259.1 to the Probate Code added, 1945) upon as follows: “The burden shall be such nonresident reciprocal to establish the fact of existence of the set aliens forth 259.” Section 90 foreign country law, question but of bow the has question applied
construed and such treaties or statutes is A trial on the issue of finding of fact. court finding reciprocity is like a other issue to be treated support and if there is evidence it such will of fact appeal. (See Schluttig (1950), not be disturbed on Estate of ; (1951), Estate Reihs 36 Cal.2d 423-424 P.2d [224 695] ; Cal.App.2d 260, 102 268 P.2d Estate Miller 564] [227 667].) (1951), Cal.App.2d 1, P.2d [230 following documentary The evidence was included proceeding: before the court in this ap- which copy 1. A of the Constitution of parently January 31, 1946. is declared became effective on It prop- therein, among things, (Article 18), “Private other economy guaranteed. The erty private are initiative guaranteed. right The private property inheritance of is regulated by person permitted inheritance is law. No private property the detriment of the use the may people’s community . Private be limited . . requires it, only expropriated if common interest but by law in in accordance with the law. It will be determined owner shall be com- which cases and to what extent pensated. individual branches of Under the same conditions economy single enterprises may nationalized national requires it. by law if the common interest 19.] [Article belongs it. The law determines land to those who cultivate land be owned an institution whether and how much *5 large can be no person who is a cultivator. There not basis whatsoever. land-holdings private in hands land-holdings by private will be determined maximum size of law.” 16, Yugoslav July 1946, pertaining to A decree dated
2. foreigners. provides, property by It acquisition of real acquire rights owner- “Foreign may citizens part, that by legal busi- in . . . either ship of real estate only by (in death) of among living by legacy case ness agency. . competent government . . previous approval of the acquisitions shall refer to of real limitations . . . not [Such] be issued by legal . . . Permits . . . shall inheritance estate [Yugoslavia] of of.the Economic Council the Chairman allowed if a appeal an “to the Government” with ...” the Economic Council permit refused. The Chairman of explanations con- to issue instructions is “authorized application The decree this decree.” with nection
91 provides guide or no standard to control the chairman or permits determining “the Government” in when and whether shall issue. Yugoslav 20, 1948,
3. A March decree dated entitled “Con- Transactions,” trol of which in article provides Beal Estate “Foreign acquire right 5 may thereof not that citizens property Yugoslavia, except on real estate ... on the [in] legal pro- basis of 8 that “The inheritance,” and article acquiring visions hereof are not valid for real estate Yugoslav legal citizens on the basis of inheritance or on the through 10 in- basis of inheritance testaments.” Article July (item 2, 16, validated the decree of No. herein- above). copy
4. A January 19, a letter2 dated 1949, from A. G. Heltberg, American in Belgrade, Consul Yugoslavia, ad- dressed Controller the State of California, in which stated, among things, it is other provision of the Yugoslav decree March “Foreign citizens may acquire right property or real estate . . . [in] Yugoslavia except legal on the basis of inheritance,” has “informally interpreted” by been the claims office of the Yugoslav Ministry Foreign Affairs “to foreign mean that may property they, citizens inherit if Yugoslav under law, are considered to be the natural heirs of the deceased. If property person is willed to some other than the natural heir that ’’ person may question. not succeed apparent It is that the evidence summarized herein- support above is sufficient to that on date reciprocal rights decedent’s death did not exist with respect property. real In July the decree of 16, 1946 (which remained in effect until invalidated the decree of 20, 1948), March it is declared that citizens ac quire property “by legacy (in death) real case of only by previous approval competent government agency,” and acquisitions such limitations shall not refer by “legal *6 already As herein, inheritance.” noted no pro standards are guide government either agency vided to the or a in testator determining situations, any, in what if acquisition such by approved, legacy would be is it inferable grant that the withholding, ing, the or the conditions of granting, approval according may vary from case to case to the discretion of agency in governmental the as exercised an unbounded field objection appellant. without 2Admittedinto evidence from by equality application. The unguided standards of appears comparable that before situation thus to be the (1950), supra, 36 Cal.2d Schluttig court in Estate of taking 425, which was held when “the of estates in it of suf- testamentary disposition or succession is a matter directions of the in accordance with ferance determinable concepts sentiment, there officials and their of national Nazi right’ is used in the Probate ‘reciprocal is no as that term Code.”
Furthermore, that section of the is to be noted right involved, of the Code, which here limits the Probate is property in this suc- alien “to take real State nonresident where testamentary disposition,” to instances or those cession reciprocal right upon part of citizens the there is “a the upon the terms and property real same to take United States added) (italics of the citizens” conditions as residents and the and condi- country of alien’s residence. That terms the Yugo- foreigners may acquire real which tions on may be so from those on which it by testament differ slavia inference to acquired by Yugoslav citizens is a reasonable Although July 16, 1946. the from the decree of drawn 20, 1948, March and of the inter- provisions of the decree of forth by Yugoslav authorities which set pretation thereof directly January 19, 1949, do consular letter the death Yugoslav law of the date of testator’s establish under they tend to confirm that (March, 1947), do herein be- was established July 1946, a differentiation decree of heirs of the de- foreigners who are natural tween legal “by inheritance” and succeed to real estate ceased to foreigners take real estate by other any rights claimed (in death).” “by legacy case of contends, nevertheless, Appellant provisions treaty II3 of a entered into in 1881 of article between the Kingdom (of present and the Serbia which United States Yugoslavia is the successor Republic government) cer Secretary of of the tified State United as re- States treaty II as follows: “In of the reads all that concerns 3Article acquiring, possessing, disposing every. right real or subjects property, kind of personal, citizens of the United States Serbia and Serbian States, enjoy respective United shall which grant grant subjects shall each of these laws states to the of the nation. most favoured limits, subjects “Within these under the same conditions as the nation, they liberty acquire shall most favoured be at dis- property, by purchase, sale, pose donation, exchange, of such whether *7 maining in full force and effect between this
Yugoslavia, applicable are controlling appellant’s noted, favor on the issue of reciprocity. It paragraph first II seemingly only article treats of “citizens of the United States in [Yugoslavia] Serbia and Serbian [Yugoslav] subjects in the States,” United than, rather as is the present situation in the case, of a United States citizen who dies in the United States and Yugo- leaves to a subject slav who is in and therefore is here not applicable. Even if we assume its applicability in respect, however, rights granted the only given are by those each contracting the subjects nations “to the of the most favoured ’ nation, ’and do purport equal not rights given guar- to or by anteed contracting each of the nations to its own citizens.
Consequently treaty provisions not recipro- do establish the rights required cal by the Probate Code.
Testimony by the Ambassador of to the “Yugoslavia United States that accords to citizens and resi dents of the equitable rights United States their full and inheritance under . . . the [treaty] Convention . . . whether the Convention applicable itself is or
[and that] . . . Americans do have full, complete their unabridged rights of inheritance to inherit from their relatives or from their estate in Yugoslavia,” serves at most to create a conflict in evidence as to controlling the ultimate fact and is not reciprocity. Upon issue of the record we are bound to hold that the evidence is not as a matter of law insufficient support of the trial court that at the time of reciprocal rights decedent’s death meaning within the applicable statute did not property. exist as to real reciprocity
As respect to whether existed with per property, sonal opinion there is a substantial conflict of evi appellant respondent urge dence and both that evidence nature, other, offered improperly received. pass upon contentions, however, We need not such because it appear regard does not if errors, any, to the ad opinion prejudicial. mission of light evidence were In the contract, marriage testament, inheritance, inor other manner what- subject ever, being any taxes, imposts, charges without whatever higher other or than those which are or shall be levied on natives or on subjects of the most favoured state. ‘ ‘ They liberty export freely proceeds shall likewise be at property, goods general, being the sale of their jected and their without sub- higher pay any payable other or duties than those under Similar natives, subjects circumstances of the most favoured state.”
94 subject, mentioned, upon hereinafter the other evidence
of result would have likely think that a different do not we opinion disputed if evidence in court been reached the trial VI, 4½.) (Cal. Const., art. not been had received. § copy expressions opinion, Aside from copies mentioned, and Yugoslav hereinabove Constitution, as foreign governing with Yugoslav decrees transactions in evidence received with nationals were countries their in themselves and decrees objection, and such Constitution out reciprocity did the trial court that support the Provisions personal property. respect to with exist The first of the already been mentioned. have Constitution provides: September 7, 1945, decrees, effective which became of November 2 Resolution By Article “630. virtue of People’s Legislative and Executive Supreme 30, 1943 on the provisional organ of Body Yugoslavia as a Representative authority Yugoslavia con people’s supreme covering 1945 August Resolution of nection with the Libera Council of National change Antifascist of name of the People’s Assembly of the Yugoslavia into Provisional tion of suggestion at the Federative Democratic of the Provisional Finance, the Presidium Minister Democratic Federative People’s Assembly of the decree.
“The Law WlTH FOREIGN PAYMENT TRANSACTIONS “REGULATING Countries Exohange Law) “(Foreign Rules “Basic “Article foreign countries, “All financial transactions with as well country in foreign all transactions within the relation development countries that affect of the credit bal- country the international of our value of our ance (foreign exchange transactions) currency domestic are sub- ject (foreign Federal Minister the control of the of Finance exchange control).
“Article 2 following subject “Primarily the are transactions con- trol. “ foreign (a) All transactions within the and with foreign exchange, foreign claims and debts countries: currency; other values currency *9 “(b) foreign All transactions with countries: in domestic currency, currency credits and in domestic debits and other currency; values domestic
“(c) foreigners All transactions with country, within the causing changes relations country between our foreign countries; and and . . .
“Article 3 “The term transaction from 1 2 Articles and as used this law means the transfer of values and pay- metals and ments, establishment, it also means the cancellation change obligations rights metals, and actual to values and as well changes obligations. holders 4
“Article “Permission must be had for transactions described in according 1 2 foreign Articles of this Law exchange to regulations. 5
“Article is forbidden “It to conclude business in country currency amount of which in gold domestic tied or some foreign currency. . . . 6
“Article The Federal “(1) supreme Minister of Finance as the foreign exchange authority, foreign exercises his control over exchange through: agencies] . . . [various “ (2) regulates The Federal Minister of Finance the limits jurisdiction foreign exchange as between the authorities regard exercising foreign exchange control, be by Regulations from Article 25 Law, by separate of this decisions. 7
“Article “(1) Transactions, subject foreign exchange control ac- cording Law, may this only be conducted by persons and establishments authorized to do so the competent foreign exchange authorities, unless the conduct of such business is permitted by foreign exchange rules themselves. . . .
“ 8 Article Bank, “The National whenever authorized the Federal Finance, may Minister of at request time the holders in to offer for sale to the National Bank all their foreign exchange (regardless whether it be in the shape foreign currency, checks, claims drafts, etc.), foreign cur- If the metals. National precious foreign values
rency, . . . fix the terms. buy, it shall Bank decides “ Article 12 exchange in the as used ‘devisa’ “(1) The term basis, in what- on whatever abroad a claim regulations means disposal. . . . manner of regardless of the currency, ever “ Article in this Law means all as used “(1) foreigners The term permanent residence seat with corporations persons *10 persons ownership citizenship of of abroad, regardless enterprises. of “ persons means all and cor- persons (2) domestic The term or seat within coun- permanent residence with porations ownership of citizenship persons of of regardless try, enterprises. . . . 16 “Article
“ exchange foreign infractions are:... (1) penalties for constituting objects or values of Confiscation “2. . infraction, part. in full exchange . . foreign “ pronounce of Finance shall Federal Minister (2) The penalties. ... “ Article 25
‘‘ Finance shall issue more detailed Minister of The Federal Law, for the execution of this and decisions rules, regulations National Bank. ...” consulting the upon 1946, confirms decree, effective October The second 7, 1945, and amends it in various September of the decree largely immaterial here. How- appear respects which Min- provides that “The 24 the second decree ever, article issue herewith authorized to of FPRY is of Finance ister for the execu- and decrees instructions, orders regulations, confirming apparently unlimited thus law,” tion of this foreign exchange trans- of Finance over power Minister of the actions. “Foreign Exchange Law” urges
Appellant question reciprocity; materiality in relation to no has exchange and has no merely “regulatory of that it is reading But a of inheritance.” whatever to reference mentioned makes it of the documents entire substance justified reaching the con- trial court apparent States, Yugoslav law a citizen of the United under clusion that definitely death, ascertain- had no of decedent’s at the time Yugoslav property right to receive enforceable able and 97 testament, and the receipt such would depend in each upon case largely, if entirely, uncon trolled discretion of the Minister of Finance. This is far dif ferent from a regulation standardized might merely which delay the transmission gold, money, other stores value from one (See nation to Schluttig (1950), another. Estate of supra, 416, 425; 36 Cal.2d Estate (1951), supra, Miller cf. Cal.App.2d 1, 104 12, 13.) pertinent Here it is to ob serve, as was declared in Estate (1944), Cal.App. Blak 2d ‘right’ P.2d : property by “The [150 to take 567] ‘right inheritance and the to receive’ inheritance pay in money, long ment recognized have part been as of the sub stantive, legal and legal sanctioned incidents of the normal society. order ‘right’ . .. The to receive the benefits of necessary the inheritance is a corollary and inherent to the ‘right’ to take separable inheritance. One is not from the other. The right one includes the other. If the to take exists . . . the to receive exists ...”
Upon us, the record before which includes the Con stitution and the Resolutions and Decrees of *11 mentioned,
above we cannot hold that as a matter of law the justified concluding trial court was not a citi whether zen of the States, death, United as of the date of decedent’s might any particular actually possession case receive and marketable title to real estate in devised to him or personal property, value, or its bequeathed him, was a grace indulgence matter of or individual rather than of based on uniform law.
By prejudicial reason our error is conclusion that no supports shown and that the evidence trial reciprocity court that on the date of death as con- decedent’s templated by Yugo- and defined our law did not exist respect property, slavia with be- personal to either real or it unnecessary comes further respondent’s to consider or decide contentions. judgment
The is affirmed. Gibson, J., Shenk, J., Edmonds, J., C. Spence, J., concurred.
CARTER, J. I dissent. majority opinion harmony my is out of concept with principles applicable of law to this case I am in expressed full accord with the views the able and learned when this case was be- opinion prepared Mr. Justice Peters Court, Appeal adopt opinion said District fore the my dissent: ‘‘ in the Arbulich, decedent, was born J. Charles States, United became Yugoslavia, came to the now known as March Francisco on citizen, died San an American consisting personal prop- of real and an estate and left brother, American citizen he disinherited his erty. By his will Arbulich, and left his entire estate respondent Thomas S. if testator, not father, if he should survive to his Yugo- Arbulich, Jr., a brother, appellant, John his then to predeceased Charles. The father and resident. slav citizen through (John the Consul General John Thomas and Both being heirship, to determine Yugoslavia) petitions filed ineligible take under by Thomas that John contended claimed, does it is reason so the will for the citi- rights to American reciprocal of inheritance grant meaning Yugoslavia within the inheriting from citizens of zens such John claimed 259 of the Probate Code. section claiming to be petition one reciprocal existed. A presented filed, issues was also but the the widow of Charles here involved. proceeding have been settled and are not many because spread months trial which over “After a parties to granted permit continuances of numerous reciprocity, evidence on the basic issue present secure exist, that reciprocity did not determined that the trial court will, and ineligible under the therefore to take John was Thomas as should be distributed to entire estate general, through consul remaining John, heir at law. sole appeals. *12 discussing which, except the evidence for the
“Before testi Yugoslav ambassador to the mony States, United is documentary in entirely character, some reference almost general governing law made to the such should be proceedings. pointed out that section 259 the be of Probate It should Code statute, part merely procedural a but is of the sub is not being so, That of succession. the law statute as it stantive the desiring of the death of testator the time to leave read at governs. (Estate Giordano, to an alien 85 property Cal. of 771].) P.2d Charles died App.2d 588 March 1947. [193 (Stats. 259 as it read March of 1947 p. Section September 1160) and until its amendment in 2208, chap. of ‘ right provided: residing of aliens year, then not within or its territories to property take real the United States this testamentary State succession or upon disposition, the same terms and conditions as residents and citizens of the dependent United upon States is in each case the existence of reciprocal right upon a part of citizens of the United States to property upon take real the same terms and condi- tions as respective residents and citizens of the countries of which such aliens right are residents and the of aliens not residing in the personal United States or its territories take property in testamentary disposi- this State succession or tion, upon the same terms and conditions as residents and citi- zens of dependent the United is upon States in each case reciprocal right upon existence of a part of of citizens United personal property States to take upon the same terms and conditions as respective residents citizens of the countries of which such aliens are pre- residents. It shall be rights sumed that such reciprocal presumption exist and this prior shall be conclusive hearing any petition unless to the for portion distribution of all or a of such an heir, legatee residing alien devisee or within the United petition by any States or its person territories a is filed in- terested in the requesting estate the court to find that either rights one or reciprocal both such does not or do not exist country as to the heir, legatee of which such alien devisee or is Upon hearing petition resident. such the burden of establishing the nonexistence of reciprocal such upon shall petitioner. be Notice hearing of such shall ’ given provided in the manner Section of this code.
“Thus, as read, the section then there statutory was a re- presumption reciprocity existed, buttable and the one contending of reciprocity there was a lack had the burden of proving that fact.
“The cases have also established the law to be that while interpretation foreign treaties, statutes and of when they court, question alone are law, before is a ques tion of how such interpreted statutes treaties have been applied by question a fact. The appellate will not disturb a finding reciprocity courts nonreciprocity supported by presumption that is or is conflicting (Estate Schluttig, based on evidence. 36 Cal. *13 finding 2d 416 P.2d nonreciprocity of with Ger [224 695] — April 3, many 1945, affirmed; Miller, on Estate 104 Cal. of App.2d 667], finding reciprocity 1 P.2d of with Ger [230 many April 22, 1942, affirmed; Blak, as of Estate 65 Cal. of
100 finding 567], reciprocity of with the a
App.2d 232 P.2d [150 disclosed, prior 1942 (date but to of death not Netherlands affirmed; Holland) Estate during occupation of German 771], finding 588 a of Giordano, Cal.App.2d 85 P.2d [193 of affirmed; Italy January 17, 1945, with as of nonreciprocity 564], finding 260 P.2d a Reihs, Cal.App.2d. 102 Estate [227 of 24, 1946, af Germany as of November reciprocity of with Cal.App.2d 621 P.2d Kennedy, 106 ; firmed Estate [235 of 15, as of March finding reciprocity with Romania 837], a of In it was held that where 1949, affirmed.) all of these cases reciprocity nonreciprocity was based con finding of or presumption it flicting supported by or a rebuttable evidence appellate court, where, even not be an disturbed would reciprocity had found country, one trial court as to the same (Compare Schluttig, that it did not. and another to exist cases, supra.) cited Miller and Reihs Kennedy, Cal.App.2d 106 621 of Estate “The case [235 appli- rules that are here several other 837], sets forth P.2d or a limited nationalization held that the facts that cable. It industry place in property had taken socialization communistic in country was nature Romania, or that that by Russia, compel did non- and dominated prior held once a statute enacted to reciprocity. It also proved exist, pre- involved is to the testator the death such statute continued exist arises under sumption that 32, subdivision of the Code of provisions of section proved once such a statute is Procedure, and that Civil presumed the terms of such statute exist, it will provisions out under the section been carried have 33, of the Code of Civil Procedure. 15 and subdivisions Miller, Cal.App.2d 104 1 Estate P.2d “The cases of [230 Blak, Cal.App.2d 567], P.2d Estate 667], and [150 inherited in a fact that held that the immediately transferred to country could not be the United foreign exchange regulations, war States, due to the reciprocity. on the issue of not relevant was case, appellant entitled, “Thus, in the instant was in the presumption reciprocity court, to the rebuttable trial prove treaty he could existence of a If statute existed. prior 21, 1947, March granting enacted presump- then entitled to the rebuttable reciprocity, he was exist, law continued to and that such law tions that that according its enforced terms. Since the trial and would be against presumptions against has found these court *14 question whether, keeping in mind reciprocity, is the the proof presumptions, any and .burden of these there sub- therefrom sup- or reasonable inferences to stantial evidence port finding. the
“Although respondent prove the burden was to non- agreed present reciprocity, appellant his evidence the respondent reciprocity existed before offered his evidence. treaty appellant first introduced of 1881
“The between States, Serbia and the United certificate of then Secre- tary George May 21, 1948, duly C. Marshall dated State certifying treaty authenticated, that such is still in force and Yugoslavia and effect between the United States. That cer- history Kingdom tificate traces the of Serbia into the Kingdom Serbs, Slovenes, Kingdom Croats and into the Yugoslavia, finally, November of into the People’s Republic Federal and certifies that by agreement countries treaty between the two the Serbian of 1881 still in full force and effect. was The final clause of treaty states ‘that the said remains in certificate full force Yugo- between the United States of and effect America ’ slavia. treaty II of reads as
“Article “ follows: acquiring, ‘In all that concerns the possessing, every disposing property, personal, kind of real or or subjects citizens of United States Serbia and Serbian States, enjoy respective shall the United which the grant in grant shall each of these laws or states to the sub- jects of the favoured nation. most “ limits, these and under the ‘Within same conditions as subjects nation, they of the most favoured shall be at liberty acquire dispose property, by of such whether purchase, sale, donation, exchange, marriage contract, testa- inheritance, ment, or other manner whatever, without any taxes, imposts, being subject charges or whatever other higher which are or than those or shall be levied on natives subjects on the most favoured state. ‘‘ ‘They liberty export likewise be at freely pro- shall property, goods of their and their of the sale in general, ceeds subjected pay any being higher other or without duties than payable under similar natives, those circumstances subjects of the most favoured state.’ ‘‘There next introduced the certificate of Sava N. Kosan- ovic, Ambassador to the United States for Yugoslavia, duly Department, our May authenticated State dated
.102 concerning Yugoslavia respect of with to the the law categorical The certificate contains the
estates of decedents. meaning reciprocity exists within the of section assertion that The certificate states that 259 of the Probate Code. knowledge of own the Consti- ambassador knows his ‘ Yugoslavia of the United of accord citizens tution and laws California, America, including of the of citizens State States of reciprocal rights residing Yugoslavia, though not . . . prescribed referred to in 259 . . . of inheritance and Sections of The Constitu- Probate Code of the State California. Republic Yugoslavia Peoples laws of the Federal and tion America, grant citizens of the United States of permit though not resi- California, the State of including citizens of rights equal Yugoslavia to those accorded to in . . . dent Yugoslavia by residing in . . . to take will Yugoslav citizens ’ property all located within. . . succession 5, 1946, as Nationalization Law of December subject to the that this April 28, 1948. The then states amended certificate provides national- as amended for ‘the Nationalization Law by except immov- property foreigners, of real owned ization buildings tilling land, of farmers their own able thereof,’ but, serving in the main as the homes of the owners ‘all provisions of that act the owners of nationalized under the ’ compensation property. for property, are entitled to full such ‘‘ agreement goes with then on to state that The certificate previously concluded with the ‘all treaties United States Kingdom . . . full and effect’ of Serbia are in force former Yugoslavia. The certificate then States and between United treaty quotes II article of the United States and Serbia quoted, government above and then cértifies Yugoslavia construed and does now construe ‘has at all times guaranteeing respect treaty providing for and said rights the United complete reciprocal of inheritance between Yugoslavia America and . . . so that citizens States of America, including citizens of the State United States of they may residing wherever California, in the United States or unabridged right inherit and to have the full and reside paid inheritances, last will and have to them all receive by succession, money property, real and testament or all personal, bequeathed, them the laws devised or due to Republic Peoples of the succession situated the Federative Yugo- deceased from the estates of citizens’ subject only slavia, to the Nationalization Law as amended. duly supplemental ambassador, “A certificate of the authen- 14, 1948, dated was also ticated and October introduced. foreigners certifies that
ambassador there *16 property original in Yugoslavia inherit as set forth in the cer- up present time, tificate has been the law since 1918 to the and change in and that there has been no such laws and none is contemplated. always It is certified that ‘it has been the policy my predecessors fully of fixed and its to Government protect, preserve rights foreigners and assure the of all and Yugoslavia enjoy, residents outside of take and receive property, real, personal mixed, full of inheritance discrimination, in the manner without same and to the same Yugoslavia’ subject only extent as residents and nationals of certified, to the Nationalization Laws. It is further when moneys payable Yugoslav are due and from residents United inheritance, recipients States decedents as a result of the that moneys Yugoslavia in in receive such official at the ‘ exchange any imposts, taxes, they rate free of levies or unabridged enjoyment have free and subject use and thereof’ only imposed Yugoslav to such limitations as are on nationals protection for supplemental the of the state. This certificate July also Yugo- notes that on the United States and negotiated agreement by slavia a claims the terms of which Yugoslav government engages Yugoslav to authorize na- anyone tionals indebted to in the United States ‘to meet such maturity.’ By indebtedness on agreement the terms Yugoslavia agreed pay $17,000,000 to the United States for property American in nationalized to be distrib- uted the United among rightful States claimants. certificates,
“In these addition to two Ambassador Kosanovic by appellant. a witness He testified was called as that he was only Yugoslav ambassador to the States, United but Praesidium, minister in cabinet and a member of also a authority country. highest presented copy his He Yugoslavia adopted which, in 1946 the Constitution accord testimony ing supported an to his examination of the document, discrimination, right no makes so far as the enjoy property concerned, Yugoslav inherit is between foreigners. provides The Constitution citizens and that the private guaranteed. right is ‘inheritance ’ regulated by In addition, law. inheritance the ambassador against there no discrimination foreigners testified that inheritance, in connection with and that if inher bequest to a in the States paid are United taxes itance with person the inheritance will receive citizen, that Yugoslav reiterated his statement that times further He several out tax. any way regulations or rules or were no laws there enjoy to receive and to restricting right of an American he testified Yugoslavia. On cross-examination his inheritance Yugo under exchange controls, country had that his receiving foreign exchange anyone slav law ex regular compelled state bank at could be sell it to the big no estates change He were rates. testified there big formerly landowners Yugoslavia, that owned the land ownership of maximum nationalized, had been owners twenty-five hectares,* one that former individual is but *17 including compensated. He also testified that foreigners, were could be money by Yugoslav citizens received inheritance fully enjoyed by owned and such citizens.
“Appellant incompetent, it then, objection over that was irrelevant official document immaterial, and introduced as an Yugoslav Ministry of an official communication between the dealing Justice with the Yugoslav Ministry and the of Labor Yugo- reciprocity question. under This document states that in the slav law ‘the protection courts extend to all individuals regardless exercise of of whether rights, their [inheritance] they be It Yugoslav foreign nationals.’ also nationals or recognizes, states treaty, Yugoslavia that under the 1881 which enjoy American nationals inheriting Yugoslav citizens from exactly as privileges same over such do Yugoslav Ministry nationals. It is also asserted that always reciprocity Justice has Yugoslav informed courts that Yugoslavia inheritance United States. exists between distributing Attached copy Belgrade is court a of a of a decree portion of an States citizen. Yugoslavia estate in to a United Yugoslav Min- “Another officialcommunication between the Labor, objection, was istry Ministry and the over of Finance Ministry in which is of Finance introduced stated that it any regulation limiting the of inher- has never issued Yugoslav citizens American citizens. itance of estates that, shortage of ex- The document states due to the change, always possible transfer funds from has not been Yugoslavia is States, to the United but that it the intention of government to allow such transfers as soon conditions permit.
*A hectare 2.471 acres. ‘‘ n appellant evidence, This case. It is obvious that sucb independent presumption of reciprocity, fully would support reciprocity. of such But the trial court reciprocity question found that did exist. The is whether support there is substantial finding. evidence to “Respondent letters, first offered two one from C. W.
Cannon, United States Ambassador dated August 14, 1947, and addressed to Attorney the then General California, Heltberg, the other from A. G. American Belgrade, at dated 4, 1948, consul November and addressed O’Brien, respondent’s to Frank attorney. Neither of the letters to which these responses two letters were was offered. purport
Both letters introduced to discuss certain laws and regulations purport give opinions as to they how Appellant objected are enforced. to the introduction grounds of these letters on the they incompetent, were irrelevant, immaterial, hearsay were proper and that no foundation had been laid for their objections introduction. The good. were The letters should not have been admitted. There showing was no Heltberg that Cannon or experts were Yugoslav fact, law. In Heltberg letter states that ‘this office can not responsibility assume for statements made in *18 respect Yugoslavia.’ to the laws of The letters merely were documents, informal certainly were not official documents. important question
The sovereign of whether a state abides its laws and treaties should not be depend upon made to in- formal opinions offhand may of officials who not be experts. Without showing, a further the letters should not have been admitted.
“It must not be that assumed these two support letters nonreciprocity. They do not. Both relate foreign exchange primarily to the limiting controls the trans- country, of funds from which, fer this a factor already cited, cases is not under the relevant on the issue of reciprocity. apparently Cannon’s letter was response to a attorney general telling from the letter Cannon several that Yugoslav applied residents and citizens had to recover funds deposit banks, on California inquiring if American money deposit Yugoslavia citizens with could withdraw money, requesting such information about currency might regulations replied exist. Cannon that there were stringent regulations regard force ‘with export to the foreign exchange and the transfer of property Ref- abroad.’ Foreign Exchange provisions of the pertinent is made to
erence govern- exchange under foreign transactions putting all Law transactions. requiring permit for such control, and ment relied particularly letter is following paragraph The by respondent: upon “ information, Yugoslav Embassy’s ‘According exchange foreign only granted no have, far, not so authorities property in proceeds of claimants to the permits to American impos- exceptions, made it have, with minor Yugoslavia, but only In their claims. citizens to establish for American sible actually been able an American citizen one instance has known apply attorney could point where his bring his claim the application has been foreign exchange permit, and that for a legacy.’ involved a refused. This case and nationaliza- then refers the confiscation “The letter letter written many properties. This tion of American agreement, already to, referred before the settlement claims the two countries. was entered into between Heltberg primarily also deals “The letter of to O’Brien law, foreign exchange copy of which was enclosed. with the tight provides ‘law for a control of states that the letter opinion foreign held is the all currencies ordinarily Embassy American heirs would inherited monies into American able to transfer their [sic] ’ embassy currency. to the fact that the Attention is then called a transfer since the end of has records of but one case of such war, Yugoslav govern- from the and to a communication informing embassy grant ‘it transfers ment would legally properties within the funds derived from inherited exchange However, stocks. limits of available because foreign exchange, being amounts for the time lack deposited National Bank of the would have to be with the *19 People’s Republic Yugoslavia Yugoslav cur- Federative of rency property of successors.’ Yugoslav goes on to mention fact that
“The letter acquisition ‘permits of real 20, 1948 estate March of decree foreigners only legal of in- by but basis Yugoslavia by All real use. other estate owned or for official heritance heir, The American how- nationalized. foreigners would be properties. his inherited He little control over have ever, would approval competent of have the consent have would sell, dispose of before he could transfer state authorities dispose sell, He would not be able to transfer property. non-Yugoslav in- citizen. The amount of property property property come derived from the and the use of the housing would be determined local authorities. Further- more, complicate matters, Yugoslav Government does recognize right not of their citizens to be nationalized as Embassy possible American believes it that a citizens.
person possessing Yugoslav nationality Yugoslav under law citizenship and American under American law could inherit Yugoslav purely Yugo- manner real estate the same as other subsequently slav citizens. When such a dual national Yugoslav nationality, previously divested of his his inherited properties presumably would be seized without right indemnity.’
“There was respondent, next introduced into evidence objection without from appellant, a letter with six enclosures Lawyer 1948, O’Brien 24, dated December from Francis E. Flaherty, Acting Chief, Assistant Division of Protective Serv- ices, Department State, Washington, D. The letter calls C. 1948, year
attention to the 20, passed decree of March after the death of the involved, decedent here which contains the following ‘Foreign acquire right sentence: citizens property territory on real estate on the of the Federative People’s Republic of Yugoslavia, except legal on the basis of ’ inheritance. The thought letter then states it had been Law, provides: that the Nationalization day which ‘On the this law effective, becomes by foreigners all real estate owned ’ . . . will be nationalized, right nullified the of aliens to inherit all, at but 23, 1948, foreigners a decree June ‘ gain ownership legal real on the basis inher- itance’ was reaffirmed. The letter then forth sets the same restrictions ownership on such Heltberg’s as were forth in set letter quoted, above and then states that the Nationalization Law and the presently June interpreted by Yugo- decree ‘are slav officials permit so as to alien heirs to inherit or succeed to law, property only when, Yugoslav they under are also natural heirs of the deceased.’ ‘‘The enclosures are translations of various laws decrees Yugoslav and of a from the Ministry Foreign note Affairs 9, to the United States dated October 1948. Several of the enclosed laws and decrees foreign exchange relate to the con- already trols that have been mentioned. One of the enclosures is a decree dated March relating to the ‘Control of *20 ’ Real Estate Transactions. This decree was not effect when provides decedent died. It property that all real transfers of competent state authori- approval by the ‘subject prior are deny shall such such authorities provides
ties,’ and purposes, speculative is made for transfer approval when the larger income than needed produce a transfer will when such for exceed the maximum area allowed livelihood, or would for foreign prohibits a ownership. decree also agricultural This legal inher- owning ‘except land on the basis from citizen ‘ ’ Obligatory Interpreta- this decree is Attached to an itance. highest authority in Praesidium, tion’ acquires citizenship another Yugoslav a who to the effect that compensation. to the state without forfeits his real estate Ministry from the note above referred to “The official Yugoslavia country stated that the Foreign Affairs to this strictly apply Yugoslav provisions, laws ‘Yugoslav all Courts agreements clearly regulating the and international personal acquire or inherit real or foreign citizens [sic] Yugoslavia, within limits of the exist- property situated in discrimination, i.e., under the ing provisions and without ’ Ref- most favoured nation. as citizens of the same conditions 1948, limiting 20, of March is then made to the decree erence acquired law,’ holdings as ‘heirs at foreign real estate to those argued provision that such is consistent with and then treaty obligations foreigners all are treated alike. It because legally transfers abroad of inherited is then stated that as to grant properties Yugoslav government ‘will such transfers foreign exchange stocks,’ of available within the limits question such not available the sum can be when stocks are bank, Yugoslav temporarily deposited in national cur- rency, property successors. objection, appellant Yugoslav
“Without next introduced a 1946, July 16, relating acquisition decree dated of real property by foreigners. provides foreigners may It acquire by legal real ‘either business among living by legacy (in death) only by previ- case of approval competent government agency.’ ous of the A lease foreigner years requires permit, a for over five likewise acquisitions applies but neither these limitations of real ‘to by legal Agencies estate designated inheritance.’ are with permit issuing powers appeal granted and the from their decisions. objection copy Nationalization Law without
“Also respondent counsel for In court read into the was introduced. April adopted to that act more an amendment record By death of the decedent here involved. year after the than a *21 amendment, estate, most real as of the effective date of the amendment, by foreigners, nationalized, except owned real operated by peasant estate farmers or used the owner as quarters. living provided Yugoslav amendment also that foreign citizens who right became ownership citizens lose the of real estate. objection there was
“Also without introduced another letter Heltberg, American Consul in from addressed to January 19, State Controller and dated the California 1949. material in this letter is
Most of the cumulative of material already 20, introduced. It refers to the decree of March foreigners acquire limiting the real except estate ’ ‘ legal inheritance, points and then on the basis of out that such informally interpreted by Yugoslav been clause has officials citizens property ‘to mean that inherit if they, law, Yugoslav are considered to under be the natural heirs of property If is person willed to some deceased. other than person may heir the natural that not succeed property to the question.’ pointed It is also out that succeeding Americans would property be faced with various restric- The letter then penalties tions and controls. discusses the citizenship, and then continues: dual ‘Since the Em- bassy has no record of case where American citizens have Yugoslav generally been heirs estates. It is believed that the political affiliations of the American heir would not affect his right to inherit unless he was a dual national and his for against Yugoslavia.’ liable to confiscation crimes only other by respondent “The exhibits introduced were speeches by Yugoslav two booklets of leaders which add nothing already to the other evidence mentioned. ‘‘ trial On this evidence the court found reciprocity that personal property real to both did not exist. The estate consisted, death, here involved at the time of of both real and personal property, property having the real during been sold the course of administration. There can be no doubt at all weight that evidence indicates reciprocity that Certainly exists. personal true as to the property.
However, say, law, we as a reciprocity cannot matter of property. probably exists as to the real It is true that there support are evidence or inferences therefrom
nonreeiprocity property. as to real laws, The evidence of the interpretations decrees and to the foreigners effect that can Yugoslav only they succeed real estate if are law, heirs at *22 citizenship his acquires American forfeits Yugoslav who a
that probably support Yugoslavia, etc., in rights in real property. real nonreciprocity as to the But finding of the satisfactory because evidence is not even issue the this passed or interpretations were laws, decrees most of these It is the decedent here involved. the death of the made after in are here of such death which we law in effect at the time laws, decrees and by no means clear that such interested. It is That interpretations are construed to be retroactive. up on new trial. cleared a evidence, though that there is some
“Even it be assumed nonrecipro- support finding therefrom, that or inferences estate, factors disclosed city as there are other real by require granting and the of a new the record that a reversal trial court trial. The discloses that the considered record reci- gave great weight evidence not relevant to the issue of nonreciprocity partially procity, and was that the That this is so is conclu- based on this nonrelevant evidence. transcript, sively by of the demonstrated an examination court, findings. opinion of the trial and of the memorandum ‘‘ during expressed trial occasions the court numerous On government existing Yugo- form of in of the great distrust happen great in expressed interest what would slavia, and Yugoslavia. when delivered Great bequest here involved foreign exchange regulations in the shown interest was an American citizen trans- a restraint on wonld constitute country. inherited to this For Yugoslav funds there ferring page at R.T. 221: ‘We know trial court stated example, the by govern- today is dominated Yugoslavia Communistic today. Now, Court, power this the stand They are ment. pretty good I is that would have to have I have taken any anyone, govern- I would distribute to or to before evidence dominated that is Communists. ment back there [What reciprocity Having presumption that became of exists?] there, mind, people I met who have been lived this case Arizona, I I was on a little vacation there, even when there, they property. her lived took all of met woman who her her- They all of the business of husband and confiscated 135, 150, appear 223 and 243 other pages self.’ At indicating strongly judge he was the trial how comments government motivated the fact socialistic or communistic. theory upon proceeded which the trial court is also
“The opinion. memorandum It is there stated: disclosed ‘Furthermore, has been established to the satisfaction of Arbulich, Yugoslav the Court that said John Jr. [the heir] would receive the benefit of him distribution to estate, balance of the consisting of cash in excess of $30,000.00. *23 hearings by Yugo-
It was testimony established at the of the the present government slav Ambassador Kosanovic that the of Yugoslavia property rights is Communistic and that the of individuals completely ignored. are Under the circumstances good the Court cannot in conscience order or more $30,000.00 Yugoslavia any distributed in representa- to the claimant or to tive of country any that without assurance whatever that the any part distributee would ever receive of such funds.’ judge “Thus only the trial not indicated that he would not presumptions consider already the mentioned in favor of reciprocity, forgotten but also indicated that he had or would not documentary testimony consider the and oral to the effect Yugoslav that the permitted Yugoslavia heir would be enjoy bequest. the full benefits of the weight given by
“The the trial factors court these is also findings. Finding disclosed in the X formal reads as ‘ follows: That at the of of time death said decedent the Govern- Yugoslavia ment of since, was has Communistic and been ever ignored, of individuals are that, under the circumstances, not, good Court could conscience, Yugoslavia. order distribution to the claimant in That under regulations the laws and Ar- of John bulieh, Jr., any rights ownership does not have or control of his property, if were distribution ordered John Arbulich, Jr., would, fact, be distribution to the Commu- Yugoslavia. nistic Government of distribution Such would against public be policy contrary provisions of Section 27 of the California Probate Code.’ Yugoslav no
“There is evidence at all claimant permitted enjoy legacy Yugoslavia. would not be his way. is The evidence all the other The solemn declaration Yugoslavia Yugoslav Ambassador from of the claim- money ant receive free of tax and would that he enjoy unabridged enjoyment would ‘free and use and thereof’ lightly disregarded. could not thus The ambassador is highest diplomatic country officialof represents, he practices his declarations the law and in his country about great weight. are entitled to disapproved
“The fact the court of the form issue all on the Yugoslavia was not relevant at government recog sovereign and is Yugoslavia is state a reciprocity. As States. government of United by the as such nized state, recognized in that inheritance is right of long as some is, that it discloses here without conflict and the evidence right of inheritance right differs from the that such fact may disapprove judge an individual a country, or that as this not relevant government, factors which are are of the form reciprocity. This on the issue not be considered and should Kennedy, 106 Cal. clearly pointed out in the Estate Romania, involving 837], P.2d App.2d 621 [235 sphere communistic, of influence only but within that is not degree certainly not. Some Russia, which Euro place has in most nationalization taken socialization and may may countries, policy individuals pean we as *24 reciprocity, passing issue of approve, judges but as on the for governments factor, false and a matter of such is a form sovereign country for itself. each to determine Yugo American of an estate “The fact that an claimant foreign exchange subject to controls and slavia would be legacy country is immediately his this could not receive Practically every in the irrelevant factor. also an export from the world has some limitation on the of wealth country. nothing with the issue of Such factor has to do reciprocity. Miller, Cal.App.2d It in Estate 104 was so held of Blak, 232 667], Cal.App.2d 1 P.2d and Estate 65 [150 [230 P.2d 567]. proper interpretation
“Much is in the said briefs about the treaty treaty of 1881 and how such be about should Allen, interpreted in view of the v. 331 U.S. case Clark 953], question 91 L.Ed. 170 A.L.R. S.Ct. [67 treaty interpreted law, is not how that should be as a matter of contracting parties interpreted but how the have it. The ambas- grant reciprocity interpreted sador that it had been testified directly to all American nationals. While there is no evidence contrary this, support there that would be inferences finding contrary. gaps Any evidence on this supplied be point can on new trial. finding
“Enough has been said to indicate reciprocity partially upon lack of was inadmissible evi- based dence, upon issues, upon factors irrelevant to the laws regulations passed and decrees after the death of decedent. so, judgment being This cannot A new trial should stand factors and relevant only admissible evidence be had at which are considered. Re- must be considered. point other
“There is one appellant found, that spondent contends, and the trial court proceeding. For that properly represented was not in the It reason, be affirmed. should urged, judgment it is must this pointed finding, the trial court that, spite out of this disposition is, disposed also merits. Such of the case on its appellant had course, inconsistent with a proper appearance made no in the action. properly repre- appellant
“The contention that was not upon lawyer appearing on sented is based fact that the appellant general behalf of appointed the consul was Yugoslavia represent lawyer power no appellant. The had attorney appellant authority from nor other direct trial, represent Throughout respondent him. for counsel objected many on ground, judge, occasions, this on and the trial observed thought personal power attorney that he was indispensable. out, already pointed express finding As an made this issue. Arbulich, alleges petition Jr., of John
“The general attorney in the consul filed fact power for It is further averred that under the John.
authority general by vested the consul the United States and *25 by Yugo- the the laws treaties between United States and slavia, he, general, power authority as consul has the to attorney act as in fact for his nationals inherit who American property. recognition by The the States of United the consul general power enjoy functions, with ‘to exercise and such powers privileges as are allowed to the Consuls General duly of the most in favoured Nations the United States’ was proved. question is, general the in appear can consul our attorney in probate as for his in pro- courts fact nationals a ceeding! appoint represent Can consul a counsel to such may. nationals! The answer is clear that he proper interpretation the parties
“The discuss an article between the United in the Consular Convention States and 1881, contemporaneous in concluded with the other Serbia and, it, treaty already opinion, mentioned in this Serbian like by the States and recognized being both United XI binding. provides: still Article “ any ‘In death of the case of the citizen United Serbia, subject in States in or a the Serbian United States having any testamentary known heirs or without executors give appointed, competent
him authorities shall in- the local to the formation of the circumstances Consuls Consular belongs, in Agents of nation the deceased order to which immediately necessary be forwarded that the information parties interested. “ Consuls, and Consular General, Vice Consuls ‘Consuls appear personally, dele- have the Agents shall minor absent or heirs on behalf proceedings gate, all ’ duly represented. they are until or creditors interpretation of this argue proper over parties “The paragraph should argues that the second treaty. Appellant give the consul of the first so as independently be read argues alleged Respondent power to exist. general the paragraph operation limits of the second paragraph first country, and does not dying abroad the other nationals represent in the other nationals right to include considered, alone be either residing home. If the document at treaty provision must But the interpretation is reasonable. principles together applicable of international with considered any treaty provision, it is a well reference to law. Without representa- law principle of international consular settled attorneys fact for their international deemed to be tives are leading holding, the earliest cases so nations. One Corrunes, (U.S.) 6 Wheat. subject, is The Bello on the case Supreme States In that case the United L.Ed. 229]. [5 Spain was entitled make consul of held a vice Court Spanish owners of a by way libel on behalf of a claim Spain identities were ship and whose Spanish resident frequently following In that case the unknown to consul. (p. 168): point first made quoted appears ‘On the statement difficulty in attorney-general, this court feels no decid- duly recognized by government, is vice-consul, our ing, that a property of competent party to or defend assert nation, having jurisdiction his court the individuals of *26 by To application of international law. of causes affected subjects, of their wherever watch over the and interests may them, pursuits of draw or the vicissitudes commerce them, great object for affairs is the which of human force by sovereigns; country in deputed a consuls are their and sought only, govern, justice is for in courts where laws mockery, only preclude from the avenue would be a them through of their mission. which their course lies to the end long usage and universal of the courts of the United States, right, it is im- has sanctioned the exercise of this
115 possible, can from it. that evil inconvenience flow powers shall, any instance, Whether the of the vice-consul right receive, character, extend national to the his proceeds property registry libelled and transferred into the question court, resting principles. of a is a on other In the specific powers given by him competent authority, absence right certainly recognized.
such would Much, not be respect, depend upon this must country ever the laws of the from which, which, deputed. and to he is And this view of the subject will supposed be found to reconcile the difficulties ’ presented by have been quoted point. the authorities on this Tartaglio’s
“In the case of In re Estate, 12 245 Misc. [33 N.Y.Supp. 1121], held, it was interpre both as a result of an tation treaty Italy of a by general law, with international that general the Italian consul properly apply could receipt for personal the distributive shares of on behalf of the Italian heirs.
“In the case of Bank, Buxhoeveden v. Estonian State 41 N.Y.Supp.2d 752, good there is a collection of case and text There, authorities. treaty general principles, both and on general Estonian consul permitted appear and set judgment, aside a default against to defend a suit Bank, Estonian opinion State treated in the private as a person.
“The In Estate, case of re Zalewski’s N.Y. 332 [55 87], good N.E.2d 157 A.L.R. is another on the sub- case ject, and many collects and relevant authorities. comments There it was Appeals held the New York Court of by treaty either by general principles law, of international representative consular could even exercise on behalf of one of its nationals resident in the personal right home of a widow to elect not to take under a will. While three justices cale, they only dissented ground did so on the power of the consul did not extend to the exercise of personal such a right they disagree did not majority with the — holding appear that a consul has the represent and to his nationals. treaty provision interpreting the involved,
“In here principles in In following stated re Zalewski’s Estate, 292 184, 186, 157 87], N.E.2d A.L.R. amply supported N.Y. [55 ‘In authority, applicable: arriving meaning are at the remember treaty supreme are bound to that it is the we law of ., its words liberally . are to be taken the land . *27 purposes . .
light that, pact . and of evident since the is done counterparts, language one each little use can be made of . . When
local technical definitions of words. . two construc treaty admissible, of a are one restrictive of the tions liberal, under it be claimed and the other the latter always preferred. readily to be . . “This . court would not language, applied lean to favor a restricted construction provisions always treaty, to the of a which combines the contract, characteristics of a as well as a law.” The Bello Corrunes, (U.S.) 152, 6 Wheat. L.Ed. [5 229].’ principles
“With well settled these mind we have no treaty reasonable doubt but that the here involved should be interpreted treaty right so as to confer a on the consuls contracting appear countries to on behalf of their not nationals represented represent otherwise and them courts of country. the other would be almost inevitable for
“This conclusion were Clausen, 202 Estate Cal. 267 P. case of [259 1094]. right the Danish did not held that have the it was consul There receipt of and for distribution the interests to receive treaty under the then with Denmark. The nationals Danish was one into in involved entered 1826 and related treaty there navigation existing and solely problems commerce be- It contained a clause for the the two countries. tween navigation country and commerce each would protection of consuls from the other and admit who should agree to receive powers privileges of consuls conferred enjoy all Nearly of the most favored nation. on the consuls either treaty years into, was entered after this United States hundred treaty Germany with much broader which into a ex- entered upon power of either consuls pressly conferred receipt to receive for of nonresident nationals and to behalf of estates to which such nonresident na- shares distributive Supreme ruled, entitled. The Court of California tionals were interpretation treaty, of the and without a matter of purely as law, general principles of international reference solely treaty Denmark and the United States related between navigation commerce, powers problems and that the treaty solely related exclu- on consuls conferred treaty Germany sively problems. Thus the with did not to such favored clause confer operate under the most nation except navigation in connection with rights on Danish consuls court not discuss the did commerce. represent residing appear his national Danish consul to proceeding prin- probate general Denmark in the under the
117 ciples simply of international law above discussed. It decided consul, treaty, power that such under the had no to have dis- receipt tributed himself for to and to the share of the estate to which the Danish entitled. (See, also, national was Petersen Lyders, 1030], v. Cal.App. Lyders 303 P.2d and v. [33 Petersen, 9.) 88 F.2d present
“The case differs from Clausen case in the several particulars. present The does not involve the case Yugoslav general the him consul have distributed to and to to receipt bequeathed for appellant. the pro- to distribution, ceeding appeal is not for but to determine heirship. during appointed Several times the counsel trial general the contending consul he stated that was not estate receipted should be for the distributed consul general. agreed He that the court could order the dis- estate directly appellant, and, event, tributed to offered to appellant see that the receipted estate was distributed to for important, only him. This is because serves to distinguish case, the from the instant case Clausen but because expressed it also meets the doubts in the Bello case the Corrunes, (U.S.) 229], quota- 6 Wheat. L.Ed. In the [5 Supreme tion from that case forth above set the United States expressed that, general principles Court doubt under law, representative international a consular have could proceeds pending himself, of the to action distributed but had power representative no doubts appear about the of such to represent his absent national. “In place, the second case limited Clausen its decision interpretation treaty an involved. did not It discuss power consul, independent treaty, appear of a represent his nonresident nationals lawsuits in the country to which such consul was accredited. ‘ In place, distinguishable the third the instant case is from treaty the Clausen case involved in the because unlike the case, treaty here, properly interpreted, Clausen confers very power Moreover, general principles involved. under law, possess power appear international for consuls represent and to their nonresident nationals in the courts of to which such consul is accredited.” would, I therefore, judgment. reverse the Appellant’s petition rehearing denied for a June Carter, J., J., opinion 1953. were Traynor, petition granted. should be