Children's Playground Ass'n v. Karban

VAN DYKE, P. J. Decedent, James Karban, died in Oakland, California, on June 22, 1948, being at the time of his death a resident of Solano County. By will executed on December 18, 1946, he disposed of his entire estate to the “Childrens Playground Association or trustees, to be used in making and bettering the playground of the Grammar School in the Town of Velky Oselc, Czechoslovakia.” He declared it to be his intent to give all of his estate “to the Grammar School to be used on improvement- of the Grammar School playground. ’ ’ On November 27,1951, the administrator with the will annexed filed his final account and report and a petition for the final distribution of the estate. He alleged that the bequest made in the decedent’s will was void under section 27 of the Probate Code; that decedent’s next of kin were aliens residing in Czechoslovakia and that they were disqualified to inherit the decedent’s estate by virtue of section 259 of the Probate Code in that the laws of Czechoslovakia did not accord a reciprocal right of inheritance to American citizens; that John Karban, respondent herein, was a naturalized American citizen and a resident of New York State; that he was the nearest relative of decedent who was not disqualified from inheriting and that he therefore was entitled to distribution of the estate. The Czechoslovakian Counsel General filed an opposition to the petition for final distribution, wherein he took the position the bequest made in the will was valid and that distribution should be made to the named legatee. The personal heirs resident in Czechoslovakia did not appear. A hearing was held on April 9, 1951, and on April 13th following the court decreed that: 1. The bequest in the decedent’s will was void as alleged in the petition; 2. That the decedent died intestate; 3. That the next of kin were disqualified; and, 4. That John Karban (respondent herein) was the nearest relative who was qualified. The court therefore distributed the entire estate to John Karban. The Counsel General has appealed.

The record on appeal consists of the clerk’s transcript of estate proceedings, a reporter’s transcript, to be later discussed, and certain records certified to this court after petition granted to augment the record. The clerk’s transcript [243]presents the petition for distribution, appellant’s pleading thereto, the decree of distribution and the notice of appeal. Many other matters having to do generally with the probate of the estate are contained in the transcript but have no importance here. The reporter’s transcript is concerned entirely with oral proceedings had in the probate court almost two years before the distribution proceedings occurred. It reflects certain proceedings on petition for partial distribution which never eventuated in a decree and which petition was abandoned. It had been brought by certain alleged heirs, resident in Czechoslovakia. Appellant contends that it was stipulated on the distribution hearing that the evidence of the prior hearing might be considered. No such stipulation appears in the record and it would not help appellant if it did for the reason that the reporter’s transcript does not show that any evidence whatsoever was taken, testimonial or documentary. The entire transcript consists of arguments to the court, resulting finally in an order that the issues of law be briefed. The document contains nothing that is helpful here. Motion for augmentation was made by appellant, which resulted in a stipulation that three documents which had been lodged with the clerk of this court in connection with the appeal be returned to the probate court with directions of this court that the judge thereof who presided on the distribution proceedings cause to be prepared and executed a certificate which should correctly set forth all evidence, oral and documentary, introduced on the hearing on distribution and cause the certificate to be transmitted to this court, where it should constitute and be deemed to be a part of the record on this appeal. It was further stipulated that this court direct the clerk of the probate court to transmit all exhibits offered at or used on the hearing of the petition for final distribution as shown by the court’s certificate above mentioned, the clerk’s certificate to identify such exhibits as those so offered and used. It was also stipulated that when these documents should be so transmitted they, too, would constitute a part of the record on appeal herein. Pursuant to this stipulation there has been filed herein the probate court’s certificate and the clerk of that court has certified and forwarded the required documents.