Doest v. Doest

John C. Doest, who is the surviving brother of Gysbertus Doest, otherwise known as John Blak, appeals from two orders in probate by which he was barred from taking any interest in the estate of his brother. Both orders were made upon the same day, December 29, 1942, when two contested petitions were consolidated for hearing: (1) petition for partial distribution filed by appellant, in which he stated that, as an heir at law of the decedent, he was entitled to all the residue of the estate; (2) a petition to determine heirship filed by Hendrika Doest, the daughter of decedent and a citizen of The Netherlands, residing in Amsterdam, in which she stated that she was the sole and only heir at law of the decedent.

In support of his claim that he is the heir at law entitled to inherit his brother’s property, appellant directs our attention to sections 259, 259.1 and 259.2 of the Probate Code, enacted by the Legislature in 1941, effective on July 1st of that year. (Stats. 1941, chap. 895.) They read as follows:

Ҥ259. Aliens residing abroad: Dependence of rights upon reciprocity. The rights of aliens not residing within the United States or its territories to take either real or personal property or the proceeds thereof in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real and personal property and the proceeds thereof upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are inhabitants and citizens and upon the rights of citizens of the United States to receive by payment to them within the United States or its territories money originating from the estates of persons dying within such foreign countries.

Ҥ259.1. Same: Burden of establishing that rights are reciprocal. The burden shall be upon such nonresident aliens to establish the fact of existence of the reciprocal rights set forth in Section 259.

Ҥ259.2. Same: Disposition of property on finding of

non-reciprocity. If such reciprocal rights are not found to exist and if no heirs other than such aliens are found eligible to take such property, the property shall be disposed of as escheated property. ’ ’

At the trial, a portion of a letter from the State Department at Washington, D. C., addressed to counsel for appellant, was received in evidence, reading as follows: “In reply to your letter of July 21, 1942, you are informed that there is not in force, between the United States and The Netherlands, any treaty or other agreement containing provisions relating to the rights of nationals of either country, with respect to inheritance of property in the other country.” The deposition of appellant was then offered and admitted in evidence, showing that he is a resident of the city of San Francisco; that he had last seen his brother, Gysbertus Doest, in 1923, at Santa Barbara, California; that he had not received any letters from him since that date; that the decedent was married in Amsterdam in 1902, to Hendrika Van Straaten, who died in the following year; that deceased had one daughter, Hendrika Doest, and deponent was unable to say whether or not she was living; that he knew of no other immediate relatives of the deceased. After the introduction of these documents, it was stipulated that Henderika Doest, the decedent’s daughter, is an alien, resident in Amsterdam, Holland, and that The Netherlands was occupied by the Germans by force in June, 1940. (This was an error, such occupation having taken place in May, 1940.)

Thereupon the respondents offered in evidence various exhibits, which were admitted without objection. The first, Exhibit A, is a letter, dated June 18, 1942, from the Embassy of The Netherlands at Washington, D. C., which reads as follows:

"To Whom It May Concern

“In connection with certain probate matters pending in the Superior Court of the State of California, in and for the County of Los Angeles, The Netherlands Ambassador begs to certify hereby that under Netherlands law the reciprocity as meant in Sections 259, 259.1 and 259.2 of the California Code, is accorded citizens and residents of the United States.

‘‘Article 9 of the Act of May 15, 1829, (State Law Record No. 28) provides that the civil law obtaining in the Kingdom

of the Netherlands shall equally apply to Netherlands and to aliens, unless a statute shall provide for the contrary. As the Netherlands decedents’ estate law does not contain a provision by which the reciprocity under consideration is denied, such reciprocity has to be deduced therefrom by indirection; by the fact that no discrimination is made therein as between the hereditary rights of Netherlanders and those of aliens.

“The reciprocity in question, which was in full effect and force at the time of the invasion of The Netherlands by German forces could only be repealed by virtue of legal provision enacted by the Royal Netherlands Government recognized as such by the Government of the United States. As, however, the Royal Netherlands Government, temporarily residing and exercising its functions in London, England, which is recognized by the Government of the United States as the lawful government of Netherlands to all intents and purposes, has not modified the Netherlands decedents’ estate law in any shape or fashion, the reciprocity which is the subject of this statement continues in full force and effect.

Washington, D. C. For the Ambassador

June 18, 1942 (Signed) H. Reimens.”

In view of the authority which attaches in the present international crisis to statements of the duly accredited Envoy Extraordinary and Minister Plenipotentiary of The Netherlands relative to actions or decrees by the Royal Netherlands Government, the foregoing document was properly accepted as conclusive by the trial court (Anderson v. N. V. Transandine etc., 28 N.Y.S.2d 547 , 551; affirmed, 31 N.Y.S.2d 194 ; Agency of Canadian Car & Foundry Co., Lim., v. American Can Co., 2 Cir., 258 F. 363 [ 169 C.C.A. 379 , 6 A.L.R. 1182 ].), and, in itself, practically decides adversely the claim of appellant that respondents failed to sustain the burden of establishing the reciprocal rights mentioned in section 259 of the Probate Code. This conclusion is fortified by reference to other documents admitted in evidence, including Exhibit D, a translation certified as true, from the office of The Netherlands Ambassador, of article 9 of the Act of May 15, 1829, reading, “The civil law of the Kingdom shall equally apply to Netherlands and to aliens, unless a statute shall provide for the contrary. ’ ’ It was stipulated that this law is still in effect and that it has not been amended. Exhibit C consists of a

The appellant argues that the introduction in evidence of article 9 of the Act of May 15, 1829, does not establish the fact that Netherlanders may inherit under any conditions or that Netherlanders or anyone residing in the United States may inherit and have property paid to them in the United States arising from estates of persons dying in the Netherlands. He overlooks the reference by the Ambassador, in his letter of July 18, 1942, to the fact that “the Netherlands decedents’ estate law does not contain a provision by which

The appellant claims that the respondent, Hendrika Doest, has failed to sustain the burden east upon her by sec

The appellant further states in his reply brief, “By no stretch of the imagination or tedious explanation can a finding be implied that any inheritance would have been paid within the United States from an estate arising in The Netherlands. Respondent must prove to the court that payment would be made within the United States. That is the meaning of the reciprocal right required by the sections of the Probate Code involved here.” We note that the trial judge made a sufficient finding upon that subject in acting upon the petition of John C. Doest for partial distribution, for he found “that by the laws of The Netherlands citizens of the United States have the right to inherit real and personal property left by a citizen and resident of The Netherlands, and that reciprocal rights of inheritance exist between the citizens and residents of the United States and the citizens and residents of The Netherlands; the court further finds that although the Kingdom of The Netherlands has been invaded and occupied by Germany, the Government of The Netherlands and her laws with their attendant rights have not been abrogated by any authority recognized by the United States or The Netherlands, but that said Netherlands’ Government and the laws thereof, and particularly the rights of United States citizens and residents to inherit from estates of Netherlands’ citizens and residents, are now and were at the date of decedent’s death, present and existing.” (Italics added.) He made a similar finding in the petition of Hendrika Doest to determine heirship, and as a conclusion of law stated “that reciprocal rights of inheritance exist between citizens and residents of the United States and the citizens and residents of The Netherlands. That said petitioner Hendrika Doest has satisfied the requirements in establishing that such reciprocal rights of inheritance exist and that said John C. Doest,

Both orders are affirmed.

Shinn, J., and Wood (Parker), J., concurred.