Opinion
Page __
__ Cal.App.2d __ 218 P.2d 819 In re SCHLUTTIG'S ESTATE. CLEMENTS v. McGRATH, Attorney General of United States. Civ. 16941. California Court of Appeals, Second District, Third Division May 26, 1950.Hearing Granted July 20, 1950.
Subsequent opinion 224 P.2d 695.
Rehearing Denied June 27, 1950.
Harlod I. Baynton, Acting Director, Office of Alien Property, Washington, D. C., Valentine C. Hammack, Sp. Asst. to the Atty. Gen., David L. Bazelon, Asst. Atty. Gen., of the United States, Ernest A. Tolin, U. S. Atty., Clyde C. Downing, Asst. U. S. Atty., Los Angeles, Irving Jaffe, Asst. U. S. Atty., James L. Morrisson, Joseph Laufer, Lillian S. Scott, Joseph W. Bishop, Jr., J. Roger Wollenberg, all of Washington, D. C., for appellant.
Moore, Howorth & Trinkaus, Henry T. Moore and Walter R. Trinkaus, all of Los Angeles, for respondent.
VALLEE, Justice.
Appeal by the Attorney General of the United States, as successor to the Alien Property Custodian, from a decree determining that Bertha Clements is the owner and entitled to distribution of the residue of the estate of Bertha Schluttig, deceased, and that all of the nonresident alien heirs named in decedent's will are ineligible to take under the will.
Bertha Schluttig, a citizen of the United States and resident of California, died testate April 3, 1945, in Los Angeles, leaving [218 P.2d 820] an estate consisting entirely of personal property situated in California. By her will she bequeathed the residue of her estate to her 'nieces and nephew,' share and share alike. Bertha Clements, respondent, is the only residuary legatee who is a citizen and resident of the United States. The other residuary legatees are citizens and residents of Germany or Austria. The will was admitted to probate on May 2, 1945. The Alien Property Custodian filed copies of orders vesting in him any interest in decedent's estate to which the alien heirs might be entitled.
On September 22, 1947, respondent filed a petition under Probate Code section 259 for a determination of the persons entitled to the residue of the Schluttig estate, alleging that the residuary legatees, other than herself, were ineligible to take. Section 259, as it read on April 3, 1945, provided that the right of non-resident aliens to take real or personal property, or the proceeds thereof, by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States, is dependent 'upon the existence of a reciprocal right upon the part of the citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign countries.' Appellant was the sole objector to the petition.
At the trial evidence was received with respect to whether on April 3, 1945, the date of death of Bertha Schluttig, the reciprocal rights required by Probate Code section 259 existed an Germany and Austria. It is not necessary to narrate this evidence. It consisted largely of certain laws, promulgated during the Nazi regime after 1932, which it was claimed restricted rights of inheritance and succession because of race, religion, 'anti-social conduct' (based upon the Nazi concept thereof), and opposition to the Nazi ideology, and expert testimony with respect thereto.
The trial court found, among other matters, that reciprocal rights of inheritance did not exist in Germany and Austria on April 3, 1945, and that American citizens had no right to receive payment within the United States of proceeds of estates in either of these countries. The Attorney General appeals from the decree which followed.
During the pendency of the appeal, appellant moved for leave to produce additional evidence pursuant to Rule 23(b), Rules on Appeal. The affidavits indicated that appellant, after the exercise of due diligence, had been unable to obtain certain court records and other material evidence at the time of trial due to chaotic postwar conditions existing in Germany and Austria. The affidavits stated that since the trial appellant had obtained additional evidence which established: (1) Germany granted and recognized at all times before the war, during the war, and after the cessation of hostilities, the right of citizens and residents of the United States to inherit estates located in Germany upon the same terms and conditions as residents and nationals of Germany. (2) Prior to the outbreak of war such estates were actually delivered to the American heirs residing in this country. (3) Following the outbreak of war, the right of citizens and residents of this country to inherit estates located in Germany was at all times fully recognized, and administrators or curators were appointed by German courts to conserve and protect their inheritances. The motion was granted and the Honorable Allen W. Ashburn, judge of the Superior Court of Los Angeles County, was appointed referee for the sole purpose of taking the new and additional evidence.
The evidence received by the referee was voluminous, comprising some 400 pages of transcript and considerable documentary evidence. Among these were: (a) Approximately 106 certificates of inheritance, all certified by German courts in 1948 or later. (Certificates of inheritance are issued by district courts of Germany [218 P.2d 821] having probate jurisdiction. They are granted upon application of an interested party and with notice to all concerned. Thereafter, an investigation, based upon evidence, is conducted by a probate judge for the purpose of determining heirship in the particular estate. The decision of the probate judge is represented by the certificate of inheritance.) The certificates introduced were issued between August, 1937, and August, 1945, and apparently determine that some 140 residents of the United States were beneficiaries of German estates. The certificates refer to persons taking under a will and by succession as 'heirs.' Some of the certificates seem to indicate that the 'heirs' received their interest under a will, others by succession; in other certificates the nature of the devolution is not indicated. More than 25 of the certificates of inheritance naming nonresident heirs residing in the United States were issued during the war years of 1942, 1943 and 1944. (b) 37 decrees or orders appointing absentee curators or administrators for beneficiaries of German estates residing in the United States, covering a period from January, 1941, to December, 1944. (c) A number of extracts from German probate court cases of decedents who died between December, 1941, and July, 1944, showing the issuance of certificates of heirship naming nonresident heirs residing in the United States and elsewhere, appointment of absentee curators or administrators of the nonresident heirs, and in some instances the settlement of the estate and distribution of the heir's share to the curator or administrator in his behalf. (d) Section 154 of the Weimar Constitution of 1919, which guaranteed the right to inherit in accordance with the civil law. (e) Absentee Administration Decree of 1939. (f) Copies of reports filed by curators and other persons in possession of property belonging to or claimed by American nationals, offered for the purpose of showing that pursuant to German laws the administrators and curators reported enemy property and that such property was not confiscated during the war. (g) Enemy Property Decree of 1940-1941.
Dr. von Lewinski, a former practicing lawyer of Berlin, Germany, specializing in probate practice, testified as an expert on German law. The substance of his testimony was that both before and after the war, and specifically on April 3, 1945, citizens of Germany and of other nations inherited in Germany on an equal basis; under the foreign exchange control law of 1938 and until the outbreak of the war (December 8, 1941) actual payment of inheritances from German estates in which he represented the American heirs was made to American heirs in the United States; United States citizens were given 'preferred' treatment in the securing of licenses for the transfer of inheritances under the foreign exchange control law; the procedure therefor was outlined; following the outbreak of war, however, actual payment to heirs in the United States was not possible, but under the law issuance of certificates of inheritance proceeded in the same manner as before and curators or administrators were appointed by the German courts to conserve and protect the interests of nonresident heirs until such time as actual payment was possible; he was of the opinion that no law or policy of the Nazis denied an American the right to inherit; he knew of no case in which the right of an alien enemy to inherit had been denied by any court. He also testified that he handled some 300 cases in Germany involving American citizens or residents who were heirs to German estates; in about 200 of them (identifying some by names, dates and amounts of inheritance transmitted) the inheritances were actually transmitted to American citizens, among whom were several of the Jewish faith, in the United States prior to and until December 8, 1941; during the war he was appointed curator or administrator for American citizens residing in the United States in several estate cases; while nothing was done by the courts for a while after 1945 because they were not then functioning due to the exigencies of the war, there would have been no change in the procedure when the courts resumed their functions.
[218 P.2d 822] Dr. Desire Rakonitz, a former Hungarian lawyer, testified as an expert on International Law and Austrian law. The gist of his testimony was that under the Austrian General Civil Code foreigners had the same inheritance rights as those of Austrian citizens, that under international law the imposition of German laws upon Austria after its acquisition by Germany in 1938 had 'no force, validity, or any kind of effect,' and that the Austrian law in force both before and at the time of the acquisition of Austria by Germany prevailed at all times while Austria was occupied by the German Reich. He further testified that during the war years, whenever an American citizen became an heir to an Austrian estate, the probate court appointed a curator for the heir to safeguard his rights.
Otto A. Hoecker, a member of the San Francisco bar, testified that between 1932 and June, 1941, he personally handled about 25 cases involving American citizens who were heirs of German estates; 'in each and every case' these American heirs received their inheritances 'in full' from Germany; some were of the Jewish faith. He outlined the procedure he followed to obtain these inheritances for his clients. He testified and named certain estates in which his clients--American citizens who were heirs to German estates--had received payment in the United States, the latest date of receipt of money from a German estate being May 30, 1941.
The evidence produced before the referee in large part clearly constituted newly-discovered evidence. The bulk of it was not available until after the appeal was taken. It is material and relevant to the issues. We are not in a position, nor are we able, to judge of the effect or value of this evidence in connection with the evidence introduced at the time of trial, or to determine the credibility of the witnesses who testified, or to resolve conflicts between this evidence and that produced at the trial. A motion for a new trial can be made in a proceeding to determine heirship and interests in an estate. Prob.Code, sec. 1231. It may be safely said that had the evidence produced before the referee been tendered as newly-discovered evidence to a trial court under similar circumstances a motion for a new trial would have to be granted.
In any case where an appellant makes an application for the taking of new and additional evidence for the purpose of securing a reversal of a judgment, his showing should at least be such as to convince the reviewing court that if it had been made to the trial court by timely application for a new trial the court would probably have granted the motion. In re Estate of Culver, 81 Cal.App.2d 640, 645, 184 P.2d 738; 16 Cal.L.Rev. 500, 518. The showing of the appellant in this respect was sufficient, but it is not the sole test as to whether new and additional evidence should be taken. When we granted the motion of the Attorney General of the United States we took into consideration his contention that such evidence would not only require a reversal of the judgment but also a direction to the trial court to enter judgment in his favor. We also regarded the case as exceptional upon its facts, and because the questions involved are of wide public interest. The power to take new and additional evidence is a broad one. The principal objective of the practice is to permit of a final disposition of the cause without further proceedings in the trial court. This, however, ceases to be a controlling objective 'where the interest of justice requires a new trial.' Coce Civ.Proc., sec. 956a. Our decision therefore is that upon the facts stated, and in view of the other considerations mentioned, a new trial is required in the interest of justice.
The decree is reversed and the cause remanded, with directions to the probate court to retry the petition of Bertha Clements for determination of the persons entitled to the residue of the estate of Bertha Schluttig, and all issues raised by the objections and exceptions of appellant thereto, in their entirety. Appellant to bear respondent's costs on this appeal.
SHINN, P. J., concurs.
[218 P.2d 823] WOOD, Justice.
I dissent. I voted to deny the application to produce additional evidence on appeal. In my opinion the judgment should have been reviewed upon the record made in the trial court.