Mundt v. State of California

Opinion

ROTH, P. J.

On April 30, 1967, George Renner (decedent) died intestate and on September 15, 1969, an order settling final account in P-524093 (Renner estate) recited “. . . the heirs-at-law of said deceased are unknown ...” and provided, “ . . . property . . . whether described herein or not, ... is distributed to the State of California . . . .” (Escheat order.)

On November 6, 1974, pursuant to a petition therefor filed on July 20, 1971, by respondents as next of kin of decedent under section 1355 of the Code of Civil Procedure and section 1027 of the Probate Code, the court ordered the state to return the escheated property to respondents. State appeals.

The stipulated facts show that: Andrew and Paul Renner are brothers of decedent; respondents are the first cousins of decedent, and respondents have no documentary proof of the alleged death of Andrew and Paul. Respondents concede that if the two brothers Andrew and Paul were alive they would take the entire estate.

The pertinent findings of fact are: “ . . . decedent . . . never married, had no lineal descendants but had several siblings. ... all said siblings, save two brothers, were deceased prior to the date of death of decedent.”

The trial court concluded: “1. Petitioners are entitled to recover from the State of California the funds deposited with the State of California from the Estate of George Renner, Deceased, unless persons more closely related to decedent than petitioners shall file a claim or claims against said funds on or before September 16, 1974. 2. The evidence adduced at the trial does not show whether or not the two brothers of the decedent are living. However, if alive, the brothers’ failure to appear or file a claim to the estate before September 16, 1974 entitles petitioners, as

[943]

cousins of the decedent and next in line to succeed after the brothers, to recover the estate ... from the controller of the State of California.”

State contends that unless the brothers are proved to be dead, they are the heirs at law of decedent, and as such are the only persons entitled to claim his estate within the five-year period provided by Probate Code section 1027.