*1 Leon Metzger, William with him D. Wood, H. for and Metzger, Charles Gr. Hasson, Hull, Leiby appellant.
Edward Attorney T. Baker, Deputy General, him Walter Attorney General, E. Alessandroni, appellee. Commonwealth,
Opinion Per October 1963: Curiam, The court below determined that the raising of mink or agri- does constitute breeding farming 2(j) exemptive provisions culture within the Section Tax Act March of the Selective Sales Use 1228, P.S. amended, §3403- food that consumed mink 2(j); term is 2(h)(2), not resold as used Section of the P.S. Act the sale §3403-2(h) the mink raiser. pelt by affirmed.
Judgment
Bokey Estate. *2 Before C. Musman- Argued J., June 1963. Bell, JJ. no, Cohen, Roberts, O’Brien Jones, Eagen, him Thomas Joseph Foley, T. J. McDonald, appel- Sr., Marcus & Rosser, McDonald, Foley, lant.
James Francis him John Dano, Lawler, Lawler & Ostroff, appellees. Baker, Opinion Benjamin Octo R. Jones, Mr. Justice ber 1963: of Lackawan- a resident
Hilary Bokey (decedent), na died survived County, January 22, intestate, nor (Boki), neither wife children. Sebastian Boki administrator decedent’s filed his first estate, in the Orphans’ final account Court of Lackawanna audit County and, account, of the the balance estate to Boki as decedent’s awarded Exceptions to that first award were filed cousin. representative USSR on a consular behalf to be claiming nationals of decedent. Soviet sisters erred find- exceptions alleged These was decedent’s that Boki first cousin and in ing him non-existence of requiring other heirs. the court hearings, appointed After several a mas- into facts of investigate the alleged kinship ter
247 of the several claimants to the decedent.1 After sev- eral hearings personal the master investigation, filed a report inter he concluded that which, alia, Boki was a first cousin and that decedent had sis- ters still alive Russia,2 but that neither Boki nor met the burden of proof necessary establish their respective claims. con- view clusion that the claimants had not proven their claims, the master recommended that estate balance be transferred to the Commonwealth escheat without either under the 1929 Act3 or the 1953 Acting Act.4 upon this decree recommendation, entered a which sustained exceptions to its decree original of distribution and directed Boki, administrator, to transfer the estate to Common- wealth without escheat either under Act or the 1953 Act. From that decree Boki appeals.5
This controversy resolves itself
into
narrow
very
issues:
(1) have
the claimants, by
suf-
ficient
quantity
proven
quality,
to dis-
1 Orphans’
August 10, 1951,
Court Act of
P. L.
§601.
that,
The master stated
since Bold and his witnesses testi
cousin, and,
fied that
testimony
he was a first
since such
un
contradicted, “it must be taken that he
ais
first cousin”. Like
wise,
present
since
evidence as to the
existence of the two sis
contradicted,
they
ters
Russia was not
he assumed
still
were
living.
April 9, 1929,
343, §1314,
Act of
§1314.
PS
*4
4
July
1953,
28,
674, §2,
Act of
§1156.
20 PS
5
questions
right
The sisters’ counsel
of administrator’s
appeal
file
on
administrator,
counsel to
this
behalf.
Boki’s
As
Boki
standing
appeal
take this
has
from a decree which involves
question
Estate,
distribution: Elliott
Pa.
A. 2d
Estate,
357;
However,
317 Pa.
Reese’s
tribution this whole estate, should proven right, none claimants have Common- to the of this estate be awarded stat- if under what escheat, wealth without and, so, ute? estab- and undisputed
Certain facts appear Bobruisk, decedent was born (1) lished: Prodwin, Khar- and Mary his Albin parents being Bokey Russia, Agata (2) he had three Bokey; sisters, Adelia, kievich had and one Sylvester; (3) and Flora, brother, Ur- and and a sister, Ignatz two brothers, Alexander, States United Boki and decedent came to the sula; par- decedent’s Scranton; and settled predeceased his brother and sister, Adelia, ents, him. re- the master’s first an examination of blush,
At their that opinion and port the court’s indicate and at variance with factual are inconsistent findings claimants their ultimate conclusion, i.e., Both to take in this estate. failed that Boki decedent’s and the court was master found Flora cousin and that decedent’s two sisters, first Ivakova), Agata (Agata and (Fleriana Vasilevskaya) alive Russia and both master yet were still claimants —Boki concluded that none their alleged as the sisters —had “establish as well [ed] preponderance decedent a fair relationship evidence”. satisfying However, of trustworthy report careful examination on more can such so-called and conclusions findings opinion, It is obvious that the mas- be reconciled. what readily meant so-called “findings” ter and presented claimant had each some was the decedent which not contradicted kinship to tended to kinship and which establish such of record quantitative- both evidence, qualitatively but such required standard short sus- fell ly,
249 circum each burden.6 Under tain claimant’s of can the so-called stances, “findings” sense of fact” and the court be considered “findings master and sense that such a term is generally employed understood. evi- “finding upon
A true fact” must based be dence which not only credible and sufficient also of such quality that it satisfies standard circum- proof requires which the law under met nega- case stances; at the court expressly bar, support tived such evidence as a true fact fact”. “finding findings Ordinarily,7 are approved en below, by the court banc, if binding us buttressed sufficient by evidence support them. clearly case such rule is bar, “find- inapplicable because that which counsel terms of fact” are not such ings in reality. useful purpose
No can served reci detailed tation produced both on testimony behalf and Bold the two sisters in our because, opinion, far testimony falls short of the quantity quality required establish such Each claims. claimant had the burden of proving kinship decedent fair “by preponderance of the credible evi (Davis dence” 365 Pa. Estate, A. 2d 76 Link’s 643; 319 Pa. 180 Estate, 1).A. In Link’s su Estate, the Court pra, (pp. 519, 520), said: . “. . kinship which claim with it a carries property against claim proved of the State should be than something more it should be built on a guess, sound basis” fur and, : (pp. 523) “To defeat the ther, claim of Com- said, effect, “preponder The there be a trustworthy, i.e., credible, evidence which was ance” and satis i.e., requisite required factory, to meet proof, standard of lacking. evidence was that such exceptions Claughton to this rule are set forth in v. Bear 480, 488, Co.,& Pa. 156 A. 2d Stearns 314. precise the evidence must be so clear, monwealth quantity satisfy quality *6 definite (Empha- claimed existed.” relationship that below supplied) sis he that Boki to
It encumbent was dece- death, the time of his was a first cousin, or their dent by brothers, survived neither sur- and decedent was (3) that, except issue Boki, grand- children or neither by uncles, aunts, vived of April children: Intestate Act 24, 1947, proof In as 20 PS (3), (5), amended, §1.3. (2), §3 kin- have as of Boki’s statement supra, only we (1), Boki’s three ship and the of witnesses —one testimony Boki— of another the of son wife and mother-in-law dece- that heard on an occasion they who stated su- proof dent as of cousin;8 refer Boki his (2), of the onetime existence testimony affirms pra, denies sisters but neither affirms nor two of su- present proof existence of such sisters; (3), his completely Boki’s fails show pra, testimony now and his are brother, Alexander, sister, Ursula, tes- question It is clear that Boki’s beyond any living. negative present failed to manner timony sisters. two his own relatives decedent’s In claims sisters all support categories: and into two documentary falls copies9 of Russian purport documents which to be (a) cer- death and public birth, marriage records such documents which to show (b) purport and tificates are still alive. first cate- the two sisters and birth certificates decedent’s two sisters are gory his death certificates decedent’s brother, parents, mar- and the Adelia, brother, Sylvester, sister, hospital security social wherein the records Of: brother. to be decedent’s Boki claims “copies” are not these “reconstructed” docu claims ments.
riage parents sisters, certificates decedent’s Agata and Flora. admissi- Assuming, arguendo, of these bility they simply go certificates, facts second which are In the undisputed. presently pur- are three category power documents, attorney to be executed a so-called porting sister Flora, “survival” certificate to be executed purporting sister and a letter Flora to have been writ- purporting ten by the sister Flora after and after decedent’s death institution these proceedings. power certifi- the “survival” attorney cate we will assume an were executed before properly appropriate Russian official and authenticated American consul sister Moscow. Counsel for the *7 urge the of the admissibility these documents to present existence of the who person executed both the i.e., sister in reliance documents, Flora; so doing placed is on the Act of of Congress June Ch. 25, 1948, 62 Stat. 646, 947, as amended, U.S.C.A. §1741 April the Pennsylvania Acts of L. 27, P. 1876, 49, §1, and of PS P. July 24, 1941, L. §223 490, §9, 21 PS §291.9(3). The Act of amended, 1948, supra, copies deals of foreign documents record or on file a public foreign office a en- country is to tirely inapplicable the instant documents which are not purport not and do to be copies of such rec- Act of provides The supra, ords. 1876, that offi- the exemplifications cial acts and of foreign notaries with the of their accordance laws respective countries, the local American by authenticated consul, “shall be evidence of prima facie the matters therein set forth”; instant factual to the situation applied such Act would the recognition power the command attorney only to “survival” certificates the the extent that they person a to purporting that forth set sister Flora appropriate before officials appeared and executed nowise compels documents recognition that re sister Flora. The same person was fact In Mar supra. under the Act of sult follows 1941, Judge tinzik & C. 25 Pa. D. 2d Estate, 701, 709, Bolgek Philadelphia County, Court of Orphans’ conjunc “In a stated: dealing with similar situation, reference tion with the Act Pennsylvania set therein to the of ‘matters prima standing facie by forth’ to the matters set forth refers solely is not There to those of the affiants. notary, and certify to authority had any evidence that the notary We the affiants. more than the fact execution v. Judge cite the Scott language Shanaman ‘The 39: Penn Title Insurance 49 Berks Company, document essence of the notarial certificate is that he that been and that knows notary has executed, is as signer and that is confronted signer, bar, fact of his execution’.” In the case serting the cer and the “survival” power attorney while the limited admissibility tificate admissible, were Flora the sister a person purporting show that not and executed the instant documents but appeared Flora in fact affiant was the sister prove that sister Flora. present show person purporting written to be letter record representative Flora counsel of sister relative, for the sisters recites that Flora are Agata mentally Agata alive, *8 predeceased and Adelia dece- Sylvester and that ill of the nothing There is the writer dent. the is in fact sister decedent and it is obvi- letter ex parte a statement which self-serving, clearly is ously of confrontation inadmissible evidence. important our most jurisprudence; of witnesses party opposite to test opportunity it affords reliability the evidence cross-examination the court, through enables its opportunity given witness, better test and observe credi- to see bility have witness. The court should below given consideration whatsoever to the contents this letter for, by its it could not re- very nature, ceived into evidence nor for find- made the basis ings.
Without contents of the letter and except any implication pow- from arising the execution of the er of and the attorney statement cer- the “survival” tificate there is no evidence of record two sisters of decedent are still continued alive. Their may a fact but it has not been proven by cognizable court law.
We are convinced from an examination of rec- this ord that neither the claim of Boki or of the has been established with re- the character quired this class cases; be- the court accordingly, low correctly properly awarded the balance of this estate to the Commonwealth without escheat. the court
However, below did err in awarding balance of the estate to the Commonwealth un- either der the 1953 Act or the 1929 Act. The in- legislative tendment in the 1953 statute is clear; was authority conferred thereby to withhold the dis- tribution property persons behind the Iron Cur- tain where is convinced that the “beneficiary not have the actual benefit, use, or enjoyment . control of the . . property distributed.” To bring into the 1953 Act two play conditions must be estab- identity person lished; or persons en- titled to distribution conviction on part if that, property distributed, persons will receive person the actual benefit, or control of the enjoyment use, property. in- condition neither case, stant established and the could of the estate not and should not have provisions under the awarded been this statute. *9 have moneys The of 1929 applies Act where (a) possibility a not been where there is awarded, i.e., or but have not been established, heirs their identities where- been (b) moneys where have awarded identi- abouts of the heirs are where unknown, i.e., been but not their have ties the heirs whereabouts two In our Boki nor the established. neither view, to the balance have established their claims made moneys this can be hence, award estate, Act applicable. and the is clearly It be that the future may well able to estab- appropriate sisters will be by Court against lish claims this estate. As this “Pay- Estate (No. supra: Link’s (p. 516) 1), said under by fiduciary ment unclaimed moneys entitled preserves to anyone legally 1929] [Act as claim right thereto the his subsequently in the act. it does not take provided ... away subsequently.” claim lawful claimant assert a claim properly the time comes lawful Until when Commonwealth appropriate it presented the balance this estate. act as custodian Record remanded Decree reversed. can entered appropriate so that an decree
below Common- this estate to the awarding the under provisions escheat wealth without paid Costs the estate. Act. Dissenting Opinion Mr. Cohen: Justice decree and remand. this The I vacate claim resolve the issues as to the sisters’ should below clearly has failed sustain appellant now. and he should not this ac- heir Court’s position to do so. opportunity another given tion be