Estate of Nolan

135 Cal.App.2d 16 (1955) Estate of JENNETTE NOLAN, Deceased. EMMETT LYONS, as Administrator With the Will Annexed, etc., Appellant,

v.

W. A. ROBISON, as Administrator With the Will Annexed, etc., et al., Respondents.

Civ. No. 16098. California Court of Appeals. First Dist., Div. One.

Aug. 15, 1955. M. Mitchell Bourquin for Appellant.

Frank J. Fontes, Edmund G. Brown, Attorney General, and Charles A. Barrett, Deputy Attorney General, for Respondents.

BRAY, J.

The administrator of the domiciliary estate appeals on an agreed statement from that portion of the decree of settlement of the probate court wherein the sum of $17,947.02 [fn. *] and all after acquired property of the estate is distributed to the State of California as escheated property.

Question Presented

California has not heretofore determined the situs of personal property located in this state belonging to a nonresident intestate who leaves no heirs. The parties point out that there is a conflict of authority on the subject in other jurisdictions. Thus in In re Lyons' Estate, 175 Wash. 115 [26 P.2d 615], the doctrine of mobilia sequuntur personam was applied and the situs was held to be at the domicile of the intestate. In In re Rapoport's Estate, 317 Mich. 291 [26 N.W.2d 777], and in In re Menschefrend's Estate, 283 App.Div. 463 [128 N.Y.S.2d 738] (overruling In re Menschefrend's Estate, 124 N.Y.S.2d 793) the situs of such personalty was held to be in the state where it actually is located. We have been asked to make a [18] choice of one of these rules. We deem it unnecessary to do so, for the reason that if the situs of the property is in Montana it must be disposed of according to Montana laws. On the other hand, if the situs of the personalty is in this state, we believe that the Legislature has determined in section 946, Civil Code, that it must be dealt with according to the law of the domicile of the intestate. Thus the question to be determined here is the effect of that section.

Facts

Jennette Nolan, a resident of Butte, Montana, died May 3, 1948. She left no known heirs. Although she left a will, she died intestate as to all of her assets in California consisting of certain real property and two savings bank accounts. Her will was duly admitted to probate in Montana. Thereafter ancillary probate proceedings of her will were had in the San Francisco Superior Court. No creditors' claims were filed in the latter proceeding. January 15, 1953, the California administrator filed here his petition for distribution of the California estate. February 13th, the Montana administrator filed here his petition for delivery of the assets to him. April 16th the State of California filed here its petition for delivery of assets to the Treasurer of the State of California as escheated property.