Gumen

Gumen v. State

Good Law

1971 Cal. LEXIS 237·5 Cal. 3d 62·95 Cal. Rptr. 433·485 P.2d 785

Supreme Court of CaliforniaJune 10, 1971L.A. No. 29832California7,112 words

Opinion

lead Opinion

In this proceeding to determine heirship, the State of California appeals from a decree ordering that certain nonresident aliens are entitled to distribution of specified proportionate shares of decedent’s estáte.

After decision by the Court of Appeal, Fourth Appellate District, Division Two, reversing the judgment of the trial court, we granted a hearing in this court for the purpose of giving further consideration to the issues raised. Having made a thorough examination of the cause, we have concluded that the opinion of the Court of Appeal prepared by Justice Kaufman and concurred in by Acting Presiding Justice Tamura and Justice Kerrigan correctly treats and disposes of the issues involved and we adopt such opinion as and for the opinion of this court. Such opinion (with appropriate deletions and additions) is as follows: *

The State of California appeals from a decree determining that 24 nonresident aliens are entitled to inherit the estate of John Horman. The state contends that four of the heirs (hereinafter claimants) did not “appear and demand” their interest in the estate within five years from the “time of succession” as required by Probate Code, section…

dissent Opinion

Peters, J.

I dissent. The majority opinion holds that the interests of four claimants escheat to the State of California because of the provisions of Probate Code section 1026. In my opinion, under the facts of this case, this constitutes a great injustice to these four claimants.

In the first place, the state contends that section 1026 is not a statute of limitations but is part of the substantive law of inheritance. This is a matter of semantics. As the majority opinion points out this case was tried and appealed at a time when section 1026 could apply but was not raised by the state. One day, before the second trial, the state attempted to amend by raising this section. The trial court held that section 1026 was tolled. In so holding, the trial court was clearly correct. The provisions of section 1026 are subject to tolling under proper circumstances. (Estate of Caravas, 40 Cal.2d 33, 41-42 [ 250 P.2d 593 ]; Estate of Spinosa, 117 Cal.App.2d 364, 370-372 [ 255 P.2d 843 ].) This was a proper case to toll the statute.

The Estate of Gogabashvele, 195 Cal.App.2d 503 [ 16 Cal.Rptr. 77 ], was decided on September 12, 1961. The Estate of Larkin, 65 Cal.2d 60 [ 52 Cal.Rptr. 441 , 416 P.2d 473…

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Judges

Peters

Cites (58)

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