456 Pa. 62 | Pa. | 1974
Lead Opinion
Opinion by
In 1972, appellants petitioned the Orphans’ Court Division of the Court of Common Pleas of Allegheny
On June 25, 1949, decedent, Mihaly Kasula, then a resident of the Soviet Union, died intestate. For a number of years decedent had resided in Allegheny County and had been employed by the United States Steel Corporation. His estate’s only asset was $2,949.80 in the corporation’s pension fund. Letters of administration were granted to decedent’s grandson, a resident of Allegheny County, on October 30, 1961.
On September 6, 1963, the orphans’ court entered a decree which, inter alia, awarded to the Commonwealth, as custodian, the sum of $1,524.53, representing intestate shares of a purported son and daughter of decedent said to be living in the Soviet Union.
Almost three years thereafter, on June 19, 1972, a petition to set aside the 1969 decree of distribution was filed by the substitute attorney in fact for the alien claimants.
The critical question presented is whether appellants offered sufficient proof to establish their claim as heirs of Mihaly Kasula. The orphans’ court as factfinder and the court en banc determined that they did not. We conclude that this determination is supported by the evidence, and therefore affirm.
Manifestly, a court may not decree distribution to persons whose identity as proper beneficiaries of a decedent’s estate has not been established. In cases such as this, involving intestacy, two facts must be proved.
The burden of proving heirship rests with the claimant. Demczuk Estate, supra; Krepinevich Estate, 433 Pa. 78, 248 A.2d 844 (1969); Bokey Estate, 412 Pa. 244, 194 A.2d 194 (1963); Davis Estate, 365 Pa. 605, 76 A.2d 643 (1950); Link’s Estate (No. 1), 319 Pa. 513, 180 A. 1 (1935). The standard of proof necessary to sustain that burden was set forth by this Court in Bokey Estate, supra at 250, 194 A.2d at 197. We there said that “ ‘the evidence must be so clean-, precise and definite in quality and quantity as to satisfy the court below that the relationsMp claimed existed.’ (Emphasis supplied)” (quoting Link’s Estate (No. 1), 319 Pa. 513, 522-23, 180 A. 1, 5 (1935)). Here, neither the auditing judge nor the court en bane were satisfied that appellants established the claimed relationship.
Both the existence of foreign heirs and specifically appellants’ identity as heirs were in controversy here. During the twenty-three years following decedent’s death, appellants presented only the following evidence in support of their claim. On August 16, 1960, Iniurcolleguia, an association of lawyers in Moscow, U.S.S.R., dispatched a letter to the TJMted States Steel Corporation Pension Fund. That letter stated that a certain Nikolai Kasula, an appellant here, asked the association to represent Mm as a beneficiary of Ms father’s estate. Approximately one year later, another letter was sent. That letter stated that the association also represented one Anna Fentsik, a daughter of decedent, who had also survived her father. On May 15, 1969, a power of attorney was executed before a Soviet notary by persons purporting to be Anna and Nikolai, and forwarded to the United States. No other evidence was offered by appellants.
On the evidence before it, the orphans’ court concluded that appellants had failed to prove either the existence of any foreign heirs or their own identity as intestate beneficiaries. The court consequently refused to disturb the earlier 1969 adjudication and dismissed appellants’ petition. This action was approved by the court en banc.
This Court’s scope of review in cases of this nature is well defined. On appeal, it is not for the appellate court to assess the credibility of the testimony. Our evidentiary review is limited to a determination of whether the findings of fact of the chancellor are supported by sufficient, competent evidence.
“We will not retry this case. The question for us to consider is, first, whether there is evidence to support the findings of fact and whether the findings of fact support the decree. The court below and the court en banc made a thorough review of all the evidence and arrived at certain findings. If the evidence supports the findings and the findings in turn justify the decree, the decree will not be set aside . . . .” Pusey’s Estate, 321 Pa. 248, 260, 184 A. 844, 849 (1936) (emphasis in the original, citations omitted); accord, Shewchuk Es
Appellants contend, however, that the court’s findings were contrary to the evidence. Their position, it would appear, is that the recitals of kinship set forth in a power of attorney executed before a notary are conclusive proof of the facts asserted. This Court has held precisely to the contrary. Bokey Estate, supra at 251-52, 194 A.2d at 197-98.
In the absence of such proof, there is no basis for disturbing the court’s decree.
Neither appellants’ identities nor entitlement were then adjudicated. In his 1963 petition captioned “petition to pay balance for distribution,” the administrator clearly questioned the existence of any Soviet heirs, there stating:
“There has been no verification of the existence of Nikolai . . . and Anna . . . both of whom are supposed to be living in the TJ.S.S.R. . . .
“. . . [S]aid petitioner . . . does not believe the existence of said individuals in the TJ.S.S.R. and therefore requests the court at this time to make distribution [awarding a two-thirds interest to the state treasury without escheat] for a limited time, and if the two alleged heirs ... do not claim said funds, then said monies to be decreed to [the known heirs].”
This decree was only a partial distribution to known heirs and payment of the balance to the state treasury without escheat. The administrator proposed this distribution to avoid suspending the entire estate for an indefinite period. Because of uncertainty in 1963 as to the existence of a possible aunt and uncle, the administrator merely requested the court to hold the balance of the estate for a reasonable time to see if any competent evidence would surface showing the existence of any other heirs. The 1963 decree by its own terms was not final. Only after waiting six years, during which no evidence of entitlement was produced, did the administrator, in 1969, petition the court to decree final distribution. The
This Act, frequently called the “Iron Curtain Act,” was since declared unconstitutional, Demczuk Estate, 444 Pa. 212, 282 A.2d 700 (1971) ; see Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664 (1968), and was repealed. Act of June 30, 3972, P.L. 508, No. 164, § 3.
A power of attorney executed in the Soviet Union on May 15, 1969, named the New York law firm of Wolf, Popper, Boss, Wolf & Jones to represent the foreign claimants. New York counsel subsequently nominated James Francis Lawler, Esq., of Philadelphia as substitute attorney in fact.
See also Bobko v. Ukrainian Workingmen’s Ass’n, 71 Lackawanna Jurist 86 (Pa. C.P. 1970) ; Slotkin Estate, 40 Pa. D. & C.2d 334 (O.C. Phila. 1965), aff’d per curiam, 423 Pa. 628, 222 A.2d 597 (1966) ; Martinzik Estate, 25 Pa. D. & C.2d 701 (O.C. Phila. 1962).
Any notion that the Act of April 27, 1876, P.L. 49, § 1, 28 P.S. § 223 (1958), compels the factfinder to accept as true an affiant’s assertions of kinship is contrary to this Court’s express holding in Bokey Estate, 412 Pa. 244, 194 A.2d 194 (1963). There this Court, speaking through Mr. Justice (now Mr. Chief Justice) Jones, unequivocally held that the statutory phrase “prima facie evidence of the matters therein set forth” refers only to matters set forth by the notary, not to those of the affiants. Id. at 252, 194 A.2d at 198.
Moreover, this Court in Bokey specifically held: “ ‘The essence of the notarial certificate is that the document has been executed, and that the notary knows that he is confronted by the signer, and that the signer is asserting the fact of his execution.’ ” Id. at 252, 194 A.2d at 198 (quoting Scott v. Penn Title Ins. Co., 49 Berks County L.J. 36, 39 (Pa. C.P. 1956)). See Sheaffer v. Baeringer, 346 Pa. 32, 36, 29 A.2d 697, 699 (1943).
The dissent inaccurately states the issue in this case. Neither this Court nor the orphans’ court has questioned either the validity or authenticity of appellants’ power of attorney. That American lawyers may, in accordance with the terms of the power, represent appellants before our courts and assert whatever rights appellants may have is not questioned. The power of attorney was
See Demcmk Estate, 444 Pa. 212, 282 A.2d 700 (1971), in which the applicable burden of proof was satisfied. In Demcmk, in addition to producing a power of attorney, the claimant demonstrated his identity by introducing affidavits of heirship executed by members of the village in which decedent’s family resided, and copies of birth, death, and marriage certificates. Collectively, this evidence proved claimant’s identity. Id. at 220-21, 282 A.2d at 704-05. See Comment, The Demise of the “Iron Curtain” Statute, 18 Vill. L. Rev. 49, 65 (1972). Obviously, such proof is lacking in this case.
For further discussion of the necessity of and means for proving kinship and identity, see .Tones, Pennsylvania Custodial Statutes : Orphans’ Court Proceedings for Recovery of Nonescheated Funds, 39 Temp. L.Q. 153, 164-68 (1966).
The dissent erroneously contends that our decision is “an unjustified intrusion into the area of foreign affairs.” However, Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664 (1968), and Demczuk Estate, 444 Pa. 212, 282 A.2d 700 (1971), upon which the dissent relies, surely do not stand for the proposition that courts may not require proof of heirship before distribution is decreed. Requiring all claimants — foreign and domestic — to prove their entitlement is fundamental to the sound administration of estates and does not offend foreign policy.
Indeed, it has recently been observed: “The kinship of an alien heir in cases of intestacy, and the existence and identity of the heir are . . . usual matters of proof necessary to establish a valid claim to property .... Such qualifications are unaffected by
Here, claimants were faced with the same burden as American claimants. Any claimant is required to prove his identity and kinship before the orphans’ court can make an award in his favor.
The dissent erroneously argues that a foreign claimant having executed a power of attorney asserting the affiant’s kinship is entitled to share in a decedent’s estate without producing corroborative evidence even in the face of other competent and contradictory evidence which the court finds credible. If the dissenting view were to obtain, a foreign claimant by use of a power of attorney would prevail with less evidence of heirship than any other claimant.
Dissenting Opinion
Dissenting Opinion by
Tbe decision of tbe Court refuses to give recognition and effect to wbat I consider to be a valid power of attorney executed by tbe appellants in tbe Soviet Union. I, therefore, must respectfully dissent.
A recitation of tbe procedural bistory of tbe case to date, in more detail than that given in tbe Court’s opinion, will serve to put tbe issue before us in proper perspective.
In 1961, decedent’s grandson, George Perick, one of tbe appellees, petitioned for and was granted letters of administration in tbe estate of bis grandfather, tbe decedent herein, who bad died in tbe U.S.S.R. eleven years earlier, in 1949. In bis capacity as administrator there came to Perick information that the decedent bad been survived by two children, a son and daughter, living in tbe Soviet Union. Their names were Nicolai Micbailovicb Kasula and Anna Mikhailovna Kasula Eencik (tbe appellants herein). Tbe administrator proposed, therefore, in bis petition for distribution, that tbe one-third interest of each child of tbe decedent be
So matters stood until 1968. In that year, the United States Supreme Court, in Zschernig v. Miller, 389 U.S. 429, 19 L. Ed. 2d 664 (1968), declared that an Oregon statute similar to Pennsylvania’s “Iron Curtain Act” was unconstitutional as an intrusion by a state
The appellants’ petition
In my view, this estate was closed in 1963 when a decree of distribution was entered, no exceptions thereto were taken, and distribution was actually made in accordance therewith.
The power of attorney, dated May 15, 1969, was in favor of the New York firm of Wolf, Popper, Boss, Wolf and Jones (who substituted Mr. Lawler for themselves) and was executed and acknowledged before a notary public in the U.S.S.B. The certificate of acknowledgment of the power of attorney recited, inter aUa, that Nicolai and Anna, the donors of the power, were known to the notary as the persons indicated in the power of attorney and that they had come in person before her to execute and acknowledge the power of attorney. The notary public, as might be expected, was a Bussian notary, and therein, in the view of the lower court and the majority opinion here, lay its infirmity. Had the acknowledgment been made before a consul of the United States and had he certified that he personally knew the individuals who presented themselves, the document would be of “significant probative value” in determining the identity of the acknowledgers. Demczuk Estate, 444 Pa. 212, 220, 282 A. 2d 700 (1971). Here, however, relying on Bokey Estate, 412 Pa. 244, 194 A. 2d 194 (1963), the Court holds the acknowledgment insufficient to indicate authenticity of the power of attorney because the power “shows only that persons
This conclusion overlooks the fact that the power of attorney here involved, while not acknowledged immediately before a United States consular officer, was duly authenticated in full compliance with the statutes of this Commonwealth.
I do not understand Bokey Estate, supra, or any of our other decisions in this general field to have established a rule that only powers of attorney personally executed before a United States consul are entitled to recognition. Bokey and Link’s Estate, 319 Pa. 513, 180 A. 1 (1935), on which it relied, were concerned with the quality of proof to establish “kinship which carries with it a claim of property against the claim of the State.” Bokey Estate, 412 Pa. at 249, quoting from Link’s Estate, 319 Pa. at 519, 520. It was held that this must be proved “by something more than a guess,” and that to defeat a claim of the Commonwealth the evidence of kinship must be “so clear, precise and definite in quality and quantity as to satisfy the court below that the relationship claimed existed.” Bokey Estate, 412 Pa. at 250, quoting again from Link’s Estate, 319 Pa. at 522, 523. Because such proof was found wanting in Bokey, this Court concluded that the lower court erred in awarding the balance for distribution to the Commonwealth under the Iron Curtain Act. 412 Pa. at 253. In the case before us, however, that hurdle was jumped ten years ago. The transfer at that time to the Commonwealth under the Act of 1953 has not been challenged and is not in issue; indeed, that disposition was recommended by appellee.
The sole question, as before stated, is the authenticity of the power of attorney. By our statute, that authenticity is at least prima facie evidenced by the
The exact provision of the decree of distribution was as follows :
“To: Commonwealth of Pennsylvania, Department of Revenue, without escheat, the distributive shares of the following named alien beneficiaries, to be held in the State Treasury subject to the provisions of Act No. 209 approved July 28, 1953, viz:
“To: Nikolai Michailovieh, son, heir, 1/3 balance 762.27
“To: Anna Mikhailovich Kasula Fencik, daughter, heir, 1/3 balance 762.26”
In response to a request by counsel for the estate that the award be for but a limited time, the auditing judge ruled at the 1963 audit hearing: “I do not put any time limit on it because if there is ever peace with Russia, they can come into Court and get Harrisburg to release those funds. There is no time limit. It is indefinite. They cannot get it until there is some peace established between Russia and this country.”
Struchmanczuk Estate, 44 Pa. D. & C. 2d 155 (Phila. Co. 1968) ; Kuhn Estate, 18 Fid. Rep. 396 (Bucks Co. 1968) ; Kwiedarawicz Estate, 19 Fid. Rep. 568 (Schuyl. Co. 1969) ; Adams Estate, 19 Fid. Rep. 442 (Mont. Co. 1969).
Sapcaru v. Klein, Civil Action No. 65-239 in the District Court of the United States for the Eastern District of Pennsylvania, November 14, 1968. Tbe unconstitutionality of tbe Act was clearly intimated by our Court in its opinion in Krepinevich Estate, 433 Pa. 78, 86, 248 A. 2d 844, decided January 15, 1969. Thereafter in 1971, tbe “Iron Curtain Act” was indeed declared unconstitutional by this Court: Demczuk Estate, 444 Pa. 212, 282 A. 2d 700 (1971).
Tbe majority opinion notes that tbe time interval between tbe filing of tbe decree directing payments to tbe American grandchildren and tbe petition of appellants to set aside that decree was “almost three years”. Under Section 721 of tbe Fiduciaries Act, Act of April 18, 1949, P. L. 512, Art. VII, §721 (now Section 3521 of tbe Probate, Estates and Fiduciaries Code, Act of June 30, 1972, P. L. 508, No. 164), a petition to review a decree of distribution may be filed within five years of tbe date of confirmation of an account. Tbe instant petition is analogous to tbe procedure there permitted-
I can find no warrant for the statement in the opinion of the Court [footnote 1, page 64, supra] that the 1963 decree was only “a partial distribution” and that the decree “by its own terms was not final”. On the contrary, it disposed of the entire estate, and there was nothing to suggest a lack of finality.
As this Court has pointed out, one of the conditions to bring into play a provisional distribution to the Commonwealth under the “Iron Curtain Act” is that the identity of the person or persons entitled to ultimate distribution be first established. Bokey Estate, 412 Pa. 244, 253, 194 A. 2d 194 (1963).
This interpretation was followed by the Orphans’ Court of Philadelphia in Makery Estate, 46 Pa. D. & C. 2d 196 (1969). In
The applicable statutes are the Act of April 27, 1876, P. L. 49, §1, 28 P.S. §223, and the Uniform Acknowledgment Act, Act of July 24, 1941, P. L. 490, as amended, 21 P.S. §291.1 et seq. Section 4 of-the latter provides that “[t]he ackowledgment of any instrument may be made without the United States before ... (2) a notary public of the country where the acknowledgment is made.” 21 P.S. §291.4. Section 9 makes provision for the authentication of the notarial certificate which evidences the acknowledgment, as follows: “If the acknowledgment is made without the United States and by a notary public ... of the country where the acknowledgment is made, the certificate shall be authenticated by a certificate under the great seal of state of the country, affixed by the custodian of such seal, or by a certificate of a diplomatic, consular or commercial officer of the United States accredited to that country, certifying as to the official character of that officer.” See also 28 U.S.C. §1741 (Foreign Official Documents) ; Rule 44, Fed. R. Civ. Proc.
Act of April 27, 1876, P. L. 49, §1, 28 P.S. §223.
Mr. Palmer’s certificate is to the effect that the attestation of Konzhukov bears his true signature and official seal, and that on the day of execution Konzhukov was Assistant Chief of the Consular Administration of the Ministry of Foreign Affairs of the Union of Soviet Socialist Republics, duly commissioned and qualified. The consular certificate ends with the statement that Konzhukov’s official acts are entitled to faith and credit.
For a modern statement of the evidentiary role of an acknowledgment, see Clements, Trustee v. Snider, 409 F. 2d 549, 550 (C.A. 9, 1969) : “The function of the certificate of acknowledgment is to provide prima facie proof that a document — to whieh it is attached but not a part — has been executed by the person whose signature appears on the document. The certificate is ‘evidentiary in character and is required so as to entitle the instrument to be recorded or to render it competent evidence without further proof.’ Lillard v. Walsh, 172 Cal. App. 2d 674, 342 P. 2d 82, 85 (1959).” See also 1 Am. Jur. 2d, Acknowledgments, §§72, 92, 94.