Forster v. Riley

PULLEN, P. J. Margaret E. Griswold died testate on the 6th day of August, 1916, in the county of Los Angeles, leaving estate therein. Her last will was admitted to probate and distribution ordered in accordance with the terms thereof.

One of the provisions of the decree read, “$500.00 to be distributed to the heirs of Albert A. Forrester, deceased, who Chas. M. Lumereau raised as a child, Lindsay, California.”

Thereafter the executor of the will, unable to ascertain who were the parties intended to be the recipients of the foregoing bequest, deposited the sum of $500 with the county treasurer of the county of Los Angeles, who thereafter on the 22d day of December, 1922, paid it over to the state of California, where ever since said sum has remained.

By proper proceedings initiated in April, 1933, it has been ascertained that the persons intended to receive said bequests are the petitioners herein, and a judgment was made and entered directing that the controller of the state of California draw warrants on the treasury of the state of California in favor of petitioners for the respective amounts due them.

From this judgment the controller and treasurer have appealed, claiming that a person identified in a decree of distribution and entitled to a devise or bequest must claim the same within five years from the date of the deposit of such money in the state treasury, otherwise it shall become the property of the state by escheat. In other words, the state contends that all that is required under section 1274a of the Code of Civil Procedure in order that it may be determined that the state is entitled to the property, is: Was certain moneys deposited to the credit of an identified distributee in a county treasury and hence forwarded to the state treasury? And, did it remain there for five years without being claimed by the persons identified in the decree of distribution? This contention of the attorney-general is answered, and we believe successfully, by the respondent herein.

[91]The subject of escheated estates is dealt with in part 3, title VIII, of the Code of Civil Procedure. Section 1272 thereof provides that within five years after judgment in any proceeding had under this title, a person may file a petition in the proper court showing his right to the property, and upon failure to so appear, is forever barred. The contention has been made in previous actions that lapse of time alone creates an escheat, but the courts have held that there must be a judicial proceeding and judgment in favor of the state before an escheat is accomplished. (10 Cal. Jur. 569.) In the Estate of Miner, 143 Cal. 194 [76 Pac. 968], this doctrine was sought to be applied to the language of section 1386 of the Civil Code, reading, “If . . . there are no heirs to take the estate, the same escheats to the state.” The court said, however: “It seems very clear that in every case of a failure of succession for want of heirs or kindred of a decedent an action of escheat becomes necessary to vest title in the state. ’ ’