Appellants filed a petition in the Superior Court of Sacramento County, under sections 1272 and 1272a of the Code of Civil Procedure, to obtain money on deposit with the State Treasurer. Respondent, state of California, opposed said petition and after trial judgment was rendered against petitioners and this appeal is from said judgment.

The facts, as shown by the settled statement on appeal, are substantially as follows:

On August 15, 1941, the administrator filed a petition for distribution which contained the following: “Your petitioner is informed and believes and therefore alleges that the following are the persons entitled to share in the distribution of this estate: Francesco Spinosa, brother, Lucia Perelli Spinosa, sister, Antonia Fanelli Spinosa, sister.” On January 22, 1942, the probate court filed its decree entitled “Decree of Settlement of Final Account and Order for Payment of Moneys into State Treasury” This order recited: “And it appearing that the affairs of said estate have been finally settled; that no heirs or other claimants thereof or thereto have appeared and established their rights; It is further ordered, adjudged and decreed that the County Treasurer of the County of Alameda, be and he is hereby directed to forthwith pay into the State Treasury all moneys in his hands belonging to said estate. ...”

On June 22, 1948 this petition was filed in the Superior Court of Sacramento County to obtain money on deposit with the State Treasurer in the sum of $3,339.21.

The judgment against petitioners was based upon the following conclusions of law: “That the decree of the probate court finding that no heirs had appeared and established their rights, was an adjudication that Francesco Spinosa, Lucia Perelli Spinosa and Antonia Fanelli Spinosa, were not the heirs of Vito Madio Spinosa and not entitled to share in the estate of Vito Madio Spinosa and that said decree of the probate court is res adjudicata as to the rights of Francesco Spinosa, Lucia Perelli Spinosa and Antonia Fanelli Spinosa to succeed to the estate of Vito Madio Spinosa. That the petition filed herein to recover the estate of Vito Madio Spinosa from the State Treasury was not filed within the time allowed by Probate Code section 1027; . . .”

Appellants first contend that the order of the probate court did not adjudicate the rights of petitioners, or vest any interest in the funds in the state- of California. Appellants refer to the title of the decree which states: "Order for Payment of Moneys into State Treasury.” It is next argued that the words of the order, “pay into” do not denote a passage of title to the state. Appellants point out that under section 1147 of the Probate Code, the public administrator is required to deposit all funds with the county treasurer; that at the end of administration, the county treasurer, if the money is not distributed to known heirs, is authorized to deposit the same with the state. Appellants cite Estate of Miner, 143 Cal. 194 [ 76 P. 968 ], for the proposition that the words “pay into” do not vest any interest in the state. In that case the decree recited: “The affairs of the Estate of James Miner, deceased, having been fully settled, and there being no heirs or other claimants thereof, it is ordered, that the county treasurer of this city and county forthwith pay into the State Treasury all moneys and effects in his hands belonging to said estate.” It was held that: “After hearing further argument, and a reexamination of the case, we have arrived at the conclusion that the final order of the probate court did not operate to vest title to the fund so deposited in the state treasury of the state, as upon a decree in an action brought to escheat the same. ’ ’

Respondent in arguing that the decree of the probate court is res judicata points out that petitioners appeared in the probate proceedings; that the petition for distribution named the petitioners as heirs; and that, however, the court found that no heirs had appeared and established their claim. Respondent concludes that this finding is an adjudication that the petitioners were not entitled to share in the estate. In arguing that the decree of the probate court was a decree of distribution it is stated that the court had before it “a petition for distribution,” and having found that heirs had not proved their claim, ordered the estate paid to the state.

The general rule as to the doctrine of res judicata is well expressed in 30 American Jurisprudence, sections 161 and 162, pages 908, 909:

And in Guardianship of Di Carlo, 3 Cal.2d 225 , the court said at page 234 [ 44 P.2d 562 , 99 A.L.R. 990 ]:

We are unable to agree with respondent’s contention that the “Decree of Settlement of Final Account and Order for Payment of Moneys into State Treasury,” filed by the probate court on January 22, 1942, was res judicata upon the question that appellants were not the heirs of Vito Madio Spinosa. The exact language in the order was “That no heirs or other claimants thereof or thereto have appeared and established their rights.” This language must be considered in the light of, and in connection with, the circumstances as they existed at that time. The administrator had on August 18, 1941, filed a petition for distribution in which he alleged that appellants were the persons entitled to share in the distribution of the estate. This petition was not heard until January 22, 1942. In the meantime, on December 11, 1941, the United States declared war upon Italy (Joint Res. Dec. 11, 1941, c. 565, 55 Stat. 797 ). Of this we can take judicial notice. (Code Civ. Proc., § 1875, subds. 2, 3; 10 Cal.Jur., Evidence, § 27, p. 699.) Upon this declaration being made, appellants, all residents and citizens of Italy, became enemy aliens and as such were prohibited from prosecuting or maintaining any suit in law or in equity in any court in the United States prior to the end of the war. (50 U.S.C.A. App., § 7b; 56 Am.Jur., War, § 131, p. 240.) Under such circumstances, appellants, being enemy aliens, could not appear and establish their rights and no distribution could be made to them. Under such circumstances the probate court could only find that no heirs had appeared and established their rights and order the county treasurer to pay the moneys on hand belonging to said estate into the state treasury. We do not believe that the language “no heirs or other claimants have appeared and established their rights” can be held to be an adjudication that appellants were not the heirs of Vito Madio Spinosa, when the petition for distribution filed by the administrator stated that they were the heirs. If the court had intended to determine that appellants were not the heirs of deceased, it could and would have said so in direct language, but it could hardly so determine because there was and is no dispute as to the fact that they were the heirs. However, because of the state of war between the United States and Italy, it could not declare that appellants had, or had established any rights.

Before we would be justified in agreeing with respondent’s contention that the order of January 22, 1942, was res judicata that appellants were not the heirs, we would have to give to the language of the order a strained construction, and where, as here, such a construction would manifestly defeat the just claims of appellants, the doctrine of res judicata should not be “applied so rigidly as to defeat the ends of justice.” As hereinbefore pointed out, such a construction is neither necessary nor reasonable.

Respondent contends further that even if the order of the probate court of January 22, 1942, was not a final determination that appellants were not the heirs of deceased, they are still not entitled to recover the funds of said estate because their petition was not filed within the time allowed by Probate Code, section 1027. One of the conclusions of law of the trial court was in accordance with this contention.

In the very recent case of Estate of Caravas, 40 Cal.2d 33 [ 250 P.2d 593 ], decided since the trial of the instant case, the court said at page 38:

Section 354 of the Code of Civil Procedure provides:

In dealing with a similar contention in Estate of Caravas, supra, our Supreme Court said at page 39:

It is conceded by respondent that if the time of the duration of the war is no part of the statute of limitation, then the petition of appellants to obtain the moneys of Vita Spinosa on deposit with the State Treasurer was filed within the period of time allowed by said Probate Code sections 1026 and 1027.

We conclude, therefore, that the trial court erred in determining that the order of the Probate Court of Alameda County was res judicata that appellants were not the heirs of Vito Madio Spinosa, and also that the court erred in determining that the petition of appellants to recover the fund of the estate of said decedent from the state treasury was not filed within the time allowed by the Probate Code.

As stated in 10 California Jurisprudence, Escheat, section 2, page 568 :

The escheat statutes contemplate that where a person dies without heirs, or without known heirs who fail to file their claim to the estate within the time set forth in the statutes, the property will be escheated. In the instant case appellants are without question the rightful heirs and have filed their petition in the Superior Court of Sacramento County within the time required. To hold that they were barred by the prior probate proceedings under circumstances as extraordinary as the ones present in the instant proceeding would be to defeat the very spirit of the law relating to escheat and succession.

No other points raised require discussion.

The judgment is reversed.

Van Dyke, P. J., and Peek, J., concurred.

Respondent’s petition for a hearing by the Supreme Court was denied June 11, 1953.