Estate of Friedman

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 29

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 30 This is an appeal from a decree in a proceeding under section 1664 of the Code of Civil Procedure, determining the rights of all persons claiming to be heirs, or entitled to distribution. For convenience, appellants now before this court are designated as the "Kagan claimants."

The deceased left the bulk of his property by will to respondent, the Hebrew Home for Aged Disabled, a charitable corporation (hereinafter called the Hebrew Home). Such disposition was invalid as to the bulk thereof, if the testator left "legal heirs" (there being no noncharitable residuary legatee or devisee), and all the property of the testator devised or bequeathed to charitable purposes in excess of one-third of the entire estate would, in that event, descend to the "next of kin, or heirs, according to law." (Civ. Code, sec. 1313) The appellants claimed to be such legal heirs, and that the property, therefore, goes to them by the law of succession. Numerous other claimants were before the court in this proceeding and introduced evidence in support of their respective claims, but the court found that none of the parties was a legal heir of the deceased or his next of kin, and that the deceased died leaving no legal heirs nor next of kin, and therefore that the will was valid as to its charitable bequests and devises. The main question upon this appeal is whether or not the evidence before the trial court was sufficient to justify the findings that the deceased died without legal heirs, *Page 31 and that the appellants are not next of kin or legal heirs of the deceased. Appellants claim that they are cousins of the decedent. This claim is based upon the allegation that their aunt, Rasche Kagan, was the mother of Julius Friedman, the deceased. By this chain of evidence they claim to be relatives in the fourth degree. The next claim of appellants is that Julius Friedman and the Kagan claimants are all the descendants of David Friedman, who, it is alleged, was the grandfather of Solomon Elias Friedman, the father of the deceased, and of Marcus Kagan, the father of one group of Kagan claimants, and of a David Kagan, the father of the other group of Kagan claimants. This claim is entirely independent of the question of who was the mother of the deceased. It is alleged that the Kagan claimants are all the grandchildren of Jossel Kagan, but that they are related in different degrees of kinship to deceased. For it is claimed that Jossel first married Malke Friedman, a daughter of the decedent's great grandfather, David Friedman, by whom he had a son Marcus, the father of one group of the Kagan claimants, who are thus related to the decedent in the sixth degree; and that after Malke's death he married. Hinde Friedman, a niece of his deceased wife, a granddaughter of said David Friedman, and by her had a son, David Kagan (thus a halfbrother of Marcus Kagan), whose children constitute the other group of the Kagan claimants, and are thus related to the decedent in the seventh degree. In other words, it is claimed that Jossel Kagan first married a great aunt of the deceased on his father's side, and upon her death in 1800 married a second cousin of the deceased on his father's side. The evidence relied upon to establish these claims is both oral and documentary, the oral consisting, in part, of declarations of deceased members of the family, or alleged family of the decedent, testified to by deposition on written interrogatories through an interpreter. Such pedigree declarations so elicited, while properly admissible in evidence, are extremely unsatisfactory, for the witness testifies without any fear of incurring the penalties of perjury. (2 Moore on Facts, 1150, 1156, 1166; Estate of Emerson, 175 Cal. 724, [167 P. 149];People v. Ah Yute, 56 Cal. 119; People v. JanJohn, 137 Cal. 220, [69 P. 1063].) The Kagan claimants produced evidence tending to show that Rasche Kagan, a daughter of their grandfather Jossel Kagan, *Page 32 married Solomon Elias Friedman of Mitau, Russia, whom the deceased declared in his will to be his father. There is no record evidence showing who was the wife of Solomon Elias Friedman other than the census records of the town of Mitau, Russia, in which it is stated that the wife of Solomon Elias Friedman was Rossel (maiden name not given). For the purposes of this discussion we will assume that the Solomon Elias Friedman of Mitau, the husband of "Rossel," was the father of the decedent and that "Rossel" was his mother. The first difficulty in appellants' claim of relationship through decedent's mother is that the name of the wife of Solomon Elias Friedman is given as "Rossel," not "Rasche." Chaie Rasche Rosen and her niece, Helena Goldberg, both testify that "Rossel" and "Rasche" were the same person and that she was a daughter of Jossel Kagan and a sister of Marcus Kagan, and halfsister of David Kagan, the father of one branch of the Kagan claimants. If this testimony was given full weight and was uncontradicted, it was sufficient to establish the relationship of all the Kagan claimants in the fourth degree (first cousins). The testimony of Chaie Rasche Rosen, as to her personal knowledge and as to the pedigree declarations, was also mainly relied upon to establish the above-mentioned claims of relationship in the sixth and seventh degrees. Was there contradictory evidence, or evidence going to the weight of this testimony that justified the trial court in finding the fact to be contrary to this evidence? If it can fairly be said that these witnesses willfully swore falsely as to any material fact, the court was justified in rejecting their whole testimony. (Code Civ. Proc., sec. 2061, subd. 3.) Respondents point out one item of material evidence as to which appellants admit that both Chaie Rasche Rosen and Helena Goldberg testified to a fact that was not true. If this testimony was willfully false and material, or if the trial court was justified in arriving at the conclusion that it was willfully false, then the testimony of these witnesses might have been entirely disregarded, and we are not required to consider whether or not the court had the power arbitrarily to reject the testimony of a witness. In order to present the significance and effect of this testimony, it will be necessary to elaborate the relationship involved in this controversy. The untrue statement was that Hirsch Friedman, a brother of the decedent, died in Alt Sagar, a town in Russia *Page 33 near Schavli, not far distant from Mitau, in the year 1830, whereas it is admitted and proved beyond question by appellants that Henry Friedman, the brother of the decedent, died fifty-one years later (1881) in New York City, as a result of a street-car accident. It is claimed by appellants that "Hirsch" and "Henry" are one and the same person. It was a material and essential part of the proof of heirship by all the Kagan claimants to show that all the brothers and sisters of the decedent were dead, without issue surviving them. The witness Chaie Rasche Rosen testified that Henry's mother, Rasche Friedman, as she claimed, who died before 1871, told her that Henry (or Hirsch) had died of the cholera in 1830, as above stated. Appellants argue that this was an honest mistake of the witness, due to misinformation. Respondents argue that it was willfully false. The question as to which of these contentions is correct was exclusively for the trial court, and justified that court in wholly rejecting the testimony of Chaie Rasche Rosen and Helena Goldberg, if that court decided the testimony to be willfully false. There were certain parties to this proceeding, among others, known as the Grunwaldt claimants, the Bernstein claimants, and the Liebe Friedman claimants. As we said in dismissing their appeals from the decree, "each of these groups claims by an asserted kinship to the decedent, wholly distinct from, independent of, and antagonistic to the claims of each and all of the other groups." (Estate of Friedman, 173 Cal. 411, [160 P. 237].) The evidence introduced by the Grunwaldt, the Liebe Friedman, and the Jacobson claimants tended to prove that the mother of Julius Friedman was not Rasche Kagan, the aunt of the Kagan claimants, and therefore to contradict the claims of the Kagans to relationship to decedent in the fourth degree. There are many declarations of the decedent in evidence inconsistent with both their claims of heirship. After the death of his brother Nathaniel (1895) he frequently said that he had no relatives left. In the will (from which statement the word "not" is evidently omitted by inadvertence) he declared, "I am [not] aware of any kin," etc. Although he did not state who his mother was, he made declarations to many witnesses concerning his relationship to the Grunwaldt claimants, through his mother, entirely inconsistent with the claim that she was Rasche Kagan. Even if it were proper for us to do so, it would be impossible, within the reasonable *Page 34 limits of an opinion, to discuss the weight and credibility of the evidence before the trial court. The trial occupied nearly two years (two hundred and forty-six days of actual trial). The case was under submission to the trial court for over a year. The reporter's transcript of the evidence taken on the trial contained six thousand pages, with three thousand pages more of documentary evidence; the printed transcript on appeal, on bill of exceptions, 1,895 pages, containing seven hundred and fifty-four thousand words (as indicated by folio numbers), and the briefs of nearly one thousand six hunderd pages about six hundred and forty thousand words, present for our consideration one million three hundred and ninety-four thousand words, not to mention oral argument and diagrams, and we are admonished that an opinion should contain about 2,333 words. It is sufficient for us to say that after a careful consideration of the evidence and arguments in relation thereto, we hold that the finding that the Kagan claimants are not of kin to the deceased is supported by substantial evidence. The appellants complain of portions of the opinion of the trial court, but we cannot consider this matter. (Goldner v. Spencer, 163 Cal. 317, 320, [125 P. 347].) Holding, as we do, that the Kagan claimants were properly found not to be of kin to the deceased, many of the questions raised by appellants become immaterial, for if they are not entitled to inherit, they are not interested in the other questions involved in the decree and cannot be heard to urge error in the decree in favor of other claimants or the evidence in support thereof. (Blythe v. Ayres,102 Cal. 254, 257, 258, [36 P. 522]; Estate of Walker,148 Cal. 162, 166, [82 P. 770]; Estate of Fleming, 162 Cal. 530, [123 P. 284].)