Crowley v. Kallimanis

GIBSON, C. J. This is a motion to dismiss an appeal from a decree in a proceeding to determine heirship, and from an order denying a motion to vacate.

Christ Coreofingas, the deceased, died In Los Angeles County on April 5, 1942. His will, duly admitted to probate, made a specific bequest to a local resident, and left the rest of his estate to five brothers and sisters living in Greece. Respondent Kallimanis, executor of the will and the only heir at law living outside of Greece, filed his petition to determine [519]heirship, alleging that reciprocal rights of inheritance do not now exist between the Kingdom of Greece and the United States because of the domination of Greece by the armed forces of Germany; and that, by virtue of sections 259 and 259.1 of the Probate Code, the gifts to Greek residents lapsed and must be distributed in accordance with the laws of succession of this state.

Appellant Crowley, United States Alien Property Custodian, entered an appearance and also filed a document entitled “Vesting Order Number 1649,” stating that the entire estate, except the local bequest and the amounts necessary to pay expenses, taxes and debts, had been vested in the Alien Property Custodian, pursuant to his authority under the Trading with the Enemy Act. A hearing was had and the court found that respondent was entitled to the property and that appellant had no interest therein, and rendered its decree accordingly.

The decree was signed on July 23, 1943; it was entered on July 29, 1943, and notice of entry of judgment was served and filed July 31, 1943. Notice of appeal was filed on September 27, 1943, and on the same day appellant filed in the superior court a “notice of motion to vacate judgment and enter a different judgment,” specifying October 18, 1943, as the date upon which the motion would be made in court. This notice of motion, supported by affidavits, set forth as its grounds (1) that at the hearing no evidence had been introduced on the issue whether reciprocal inheritance relations existed between the United States and Greece at the time of of the testator’s death; (2) that subsequently information had been received from the State Department that such relations did exist at that time; and (3) that sections 259, 259.1 and 259.2 of the Probate Code were unconstitutional. Shortly thereafter, on October 7, 1943, appellant filed in the superior court a document entitled “Dismissal of Appeal” stating that he “hereby abandons and dismisses said Appeal” taken on September 27, 1943. This abandonment was filed, in the lower court in accordance with rule 19 (a) of the Rules on Appeal, and appellant states that it was done in order to remove any doubt as to the jurisdiction of the superior court to consider the motion to vacate the judgment. The motion to vacate was denied on November 22, 1943.