Roten-Oeschger v. Flournoy

Opinion

COUGHLIN, J.

*

Houston I. Flournoy, as Controller of the State of California, appeals from a judgment decreeing Friedrich R. Stutz recover from Flournoy the sum of $12,755, less a designated sum, by virtue of statutes governing the recovery of escheated property. Stutz is one of seven petitioners herein who are heirs at law of Gustav Muller, i.e. cousins. All of the petitioners are nonresident aliens. Muller died intestate on November 28, 1965, in San Francisco, California. On February 2, 1972, five of the petitioners filed one of the petitions herein to recover funds which had been a part of the Muller estate and which, by decree of the Superior Court of the City and County of San Francisco, dated January 11, 1971, had been distributed to the State of California. On Februaiy 14, 1974, a first amended petition was filed. On March 28, 1975, the other two petitioners filed their petition to obtain their claimed share of the funds. The two petitions were consolidated for decision. By some method, which does not appear from the record, Stutz became entitled to the claimed shares of all of the petitioners.

1

[257]

The rights of the petitioners to inherit the funds in question were conferred by Probate Code section 226, but were subject to the provisions of former Probate Code section 1026 that, “[a] nonresident alien who becomes entitled to property by succession must appear and demand the property within five years from the time of succession; otherwise, his rights are barred and the property shall be disposed of as escheated property.”

Under a settled rule the interest of petitioners in Muller’s estate vested in them upon his death, but it was a conditional interest, “ ‘upon the condition subsequent that if they fail to appear and claim the same within five years their right ceases and the property then vests in the state.’ ”

(Estate of Horman,

5 Cal.3d 62, 78 [95 Cal.Rptr. 433, 485 P.2d 785]). As petitioners did not appear and demand their share in Muller’s estate within five years after his death their interest in the estate terminated. Thus the decree of distribution in that estate was entered pursuant to Probate Code section 1027 which provided. “If the court. .. does not distribute the entire balance of the estate remaining for distribution to known heirs, devisees or legatees entitled to succeed thereto, it must distribute to the State of California that portion of such estate not distributed to such known heirs, devisees or legatees. . . .” The decree was entered January 11, 1971, which was more than five years after the death of Muller and, petitioners not having appeared and demanded their share of the estate, the court properly distributed the balance thereof to the State of California.