SCHAUER, J.
Following hearings on petitions to determine heirship in this estate the probate court found that on March 21, 1947, the date of death of the decedent (see Estate of Giordano (1948), 85 Cal.App.2d 588, 594 [193 P.2d 771]), the reciprocal inheritance rights prescribed by section 259 of the Probate Code did not exist between residents and citizens of this nation and those of Yugoslavia as to either real or personal property. Judgment was thereupon entered to the effect that decedent’s surviving brother Thomas (respondent herein), residing in and a citizen of the United States, is entitled to distribution of decedent’s entire estate, to the exclusion of a surviving brother, John, who resides in and is a national of Yugoslavia. The two brothers are decedent’s sole heirs at law. John appeals, contending that the evidence is not sufficient to support the finding of nonreciprocity. The question before us is not whether we, if we were viewing the evidence initially, should find that the greater weight seemed to favor appellant or the respondent but is, rather, whether we can hold that as a matter of law the finding of the probate court is without substantial evidentiary support. Every reasonable inference must be drawn in favor of the respondent. (Holmberg v. Marsden (1952), 39 Cal.2d 592, 596 [248 P.2d 417].) So viewing the evidence we have concluded that appellant’s contention cannot be sustained and that the judgment should be affirmed.
[89]*89Charles J. Arbulich, the decedent, was a naturalized citizen of the United States who died in San Francisco. By his will he left his entire estate, consisting of both real and personal property, to his father if the father survived the testator, otherwise to the testator’s brother, appellant John Arbulich, Jr., of Yugoslavia. The father predeceased Charles. Both respondent Thomas and appellant John (by the Consul General of Yugoslavia, who purports to be John’s attorney-in-fact) filed petitions to determine heirship, and this proceeding followed.
The question on the merits, as already indicated, is whether the evidence supports the court’s finding that the reciprocal rights required by the provisions of section 259 of the Probate Code did not exist on March 21, 1947.1
Treaties, statutes, and other evidence of the foreign domestic law may be considered. (Estate of Knutzen (1948), 31 Cal.2d 573, 579 [191 P.2d 747] ; Estate of Bevilacqua (1948), 31 Cal.2d 580, 582 [191 P.2d 752].) Where treaties or statute law alone are before the court the construction thereof is a matter [90]*90of law, but the question of bow the foreign country has construed and applied such treaties or statutes is a question of fact. A finding by the trial court on the issue of reciprocity is to be treated like a finding on any other issue of fact and if there is evidence to support it such finding will not be disturbed on appeal. (See Estate of Schluttig (1950), 36 Cal.2d 416, 423-424 [224 P.2d 695] ; Estate of Reihs (1951), 102 Cal.App.2d 260, 268 [227 P.2d 564] ; Estate of Miller (1951), 104 Cal.App.2d 1, 4 [230 P.2d 667].)
The following documentary evidence was included in that before the court in this proceeding:
1. A copy of the Constitution of Yugoslavia, which apparently became effective on January 31, 1946. It is declared therein, among other things, that (Article 18), “Private property and private initiative in economy are guaranteed. The inheritance of private property is guaranteed. The right of inheritance is regulated by law. No person is permitted to use the right of private property to the detriment of the people’s community . . . Private property may be limited or expropriated if the common interest requires it, but only in accordance with the law. It will be determined by law in which cases and to what extent the owner shall be compensated. Under the same conditions individual branches of national economy or single enterprises may be nationalized by law if the common interest requires it. [Article 19.] The land belongs to those who cultivate it. The law determines whether and how much land may be owned by an institution or a person who is not a cultivator. There can be no large land-holdings in private hands on any basis whatsoever. The maximum size of private land-holdings will be determined by law.”
2. A Yugoslav decree dated July 16, 1946, pertaining to the acquisition of real property by foreigners. It provides, in part, that “Foreign citizens may acquire rights to ownership of real estate in . . . Yugoslavia either by legal business among the living or by legacy (in case of death) only by previous approval of the competent government agency. . . . [Such] limitations . . . shall not refer to acquisitions of real estate by legal inheritance . . . Permits . . . shall be issued by the Chairman of.the Economic Council of [Yugoslavia] ...” with an appeal “to the Government” allowed if a permit is refused. The Chairman of the Economic Council is “authorized to issue instructions and explanations in connection with the application of this decree.” The decree [91]*91provides no guide or standard to control the chairman or “the Government” in determining when and whether permits shall issue.
3. A Yugoslav decree dated March 20, 1948, entitled “Control of Beal Estate Transactions,” which provides in article 5 thereof that “Foreign citizens may not acquire right of property on real estate [in] ... Yugoslavia, except on the basis of legal inheritance,” and in article 8 that “The provisions hereof are not valid for acquiring real estate by Yugoslav citizens on the basis of legal inheritance or on the basis of inheritance through testaments.” Article 10 invalidated the decree of July 16, 1946 (item No. 2, herein-above).
4. A copy of a letter2 dated January 19, 1949, from A. G. Heltberg, American Consul in Belgrade, Yugoslavia, addressed to the Controller of the State of California, in which it is stated, among other things, that the provision of the Yugoslav decree of March 20, 1948, that “Foreign citizens may not acquire right of property or real estate [in] . . . Yugoslavia except on the basis of legal inheritance,” has been “informally interpreted” by the claims office of the Yugoslav Ministry of Foreign Affairs “to mean that foreign citizens may inherit property if they, under Yugoslav law, are considered to be the natural heirs of the deceased. If property is willed to some other person than the natural heir that person may not succeed to the property in question. ’ ’
It is apparent that the evidence summarized herein-above is sufficient to support a finding that on the date of decedent’s death in 1947 reciprocal rights did not exist with respect to real property.
Free access — add to your briefcase to read the full text and ask questions with AI
SCHAUER, J.
Following hearings on petitions to determine heirship in this estate the probate court found that on March 21, 1947, the date of death of the decedent (see Estate of Giordano (1948), 85 Cal.App.2d 588, 594 [193 P.2d 771]), the reciprocal inheritance rights prescribed by section 259 of the Probate Code did not exist between residents and citizens of this nation and those of Yugoslavia as to either real or personal property. Judgment was thereupon entered to the effect that decedent’s surviving brother Thomas (respondent herein), residing in and a citizen of the United States, is entitled to distribution of decedent’s entire estate, to the exclusion of a surviving brother, John, who resides in and is a national of Yugoslavia. The two brothers are decedent’s sole heirs at law. John appeals, contending that the evidence is not sufficient to support the finding of nonreciprocity. The question before us is not whether we, if we were viewing the evidence initially, should find that the greater weight seemed to favor appellant or the respondent but is, rather, whether we can hold that as a matter of law the finding of the probate court is without substantial evidentiary support. Every reasonable inference must be drawn in favor of the respondent. (Holmberg v. Marsden (1952), 39 Cal.2d 592, 596 [248 P.2d 417].) So viewing the evidence we have concluded that appellant’s contention cannot be sustained and that the judgment should be affirmed.
[89]*89Charles J. Arbulich, the decedent, was a naturalized citizen of the United States who died in San Francisco. By his will he left his entire estate, consisting of both real and personal property, to his father if the father survived the testator, otherwise to the testator’s brother, appellant John Arbulich, Jr., of Yugoslavia. The father predeceased Charles. Both respondent Thomas and appellant John (by the Consul General of Yugoslavia, who purports to be John’s attorney-in-fact) filed petitions to determine heirship, and this proceeding followed.
The question on the merits, as already indicated, is whether the evidence supports the court’s finding that the reciprocal rights required by the provisions of section 259 of the Probate Code did not exist on March 21, 1947.1
Treaties, statutes, and other evidence of the foreign domestic law may be considered. (Estate of Knutzen (1948), 31 Cal.2d 573, 579 [191 P.2d 747] ; Estate of Bevilacqua (1948), 31 Cal.2d 580, 582 [191 P.2d 752].) Where treaties or statute law alone are before the court the construction thereof is a matter [90]*90of law, but the question of bow the foreign country has construed and applied such treaties or statutes is a question of fact. A finding by the trial court on the issue of reciprocity is to be treated like a finding on any other issue of fact and if there is evidence to support it such finding will not be disturbed on appeal. (See Estate of Schluttig (1950), 36 Cal.2d 416, 423-424 [224 P.2d 695] ; Estate of Reihs (1951), 102 Cal.App.2d 260, 268 [227 P.2d 564] ; Estate of Miller (1951), 104 Cal.App.2d 1, 4 [230 P.2d 667].)
The following documentary evidence was included in that before the court in this proceeding:
1. A copy of the Constitution of Yugoslavia, which apparently became effective on January 31, 1946. It is declared therein, among other things, that (Article 18), “Private property and private initiative in economy are guaranteed. The inheritance of private property is guaranteed. The right of inheritance is regulated by law. No person is permitted to use the right of private property to the detriment of the people’s community . . . Private property may be limited or expropriated if the common interest requires it, but only in accordance with the law. It will be determined by law in which cases and to what extent the owner shall be compensated. Under the same conditions individual branches of national economy or single enterprises may be nationalized by law if the common interest requires it. [Article 19.] The land belongs to those who cultivate it. The law determines whether and how much land may be owned by an institution or a person who is not a cultivator. There can be no large land-holdings in private hands on any basis whatsoever. The maximum size of private land-holdings will be determined by law.”
2. A Yugoslav decree dated July 16, 1946, pertaining to the acquisition of real property by foreigners. It provides, in part, that “Foreign citizens may acquire rights to ownership of real estate in . . . Yugoslavia either by legal business among the living or by legacy (in case of death) only by previous approval of the competent government agency. . . . [Such] limitations . . . shall not refer to acquisitions of real estate by legal inheritance . . . Permits . . . shall be issued by the Chairman of.the Economic Council of [Yugoslavia] ...” with an appeal “to the Government” allowed if a permit is refused. The Chairman of the Economic Council is “authorized to issue instructions and explanations in connection with the application of this decree.” The decree [91]*91provides no guide or standard to control the chairman or “the Government” in determining when and whether permits shall issue.
3. A Yugoslav decree dated March 20, 1948, entitled “Control of Beal Estate Transactions,” which provides in article 5 thereof that “Foreign citizens may not acquire right of property on real estate [in] ... Yugoslavia, except on the basis of legal inheritance,” and in article 8 that “The provisions hereof are not valid for acquiring real estate by Yugoslav citizens on the basis of legal inheritance or on the basis of inheritance through testaments.” Article 10 invalidated the decree of July 16, 1946 (item No. 2, herein-above).
4. A copy of a letter2 dated January 19, 1949, from A. G. Heltberg, American Consul in Belgrade, Yugoslavia, addressed to the Controller of the State of California, in which it is stated, among other things, that the provision of the Yugoslav decree of March 20, 1948, that “Foreign citizens may not acquire right of property or real estate [in] . . . Yugoslavia except on the basis of legal inheritance,” has been “informally interpreted” by the claims office of the Yugoslav Ministry of Foreign Affairs “to mean that foreign citizens may inherit property if they, under Yugoslav law, are considered to be the natural heirs of the deceased. If property is willed to some other person than the natural heir that person may not succeed to the property in question. ’ ’
It is apparent that the evidence summarized herein-above is sufficient to support a finding that on the date of decedent’s death in 1947 reciprocal rights did not exist with respect to real property. In the decree of July 16, 1946 (which remained in effect until invalidated by the decree of March 20, 1948), it is declared that foreign citizens may acquire real property “by legacy (in case of death) only by previous approval of the competent government agency,” and that such limitations shall not refer to acquisitions by “legal inheritance.” As already noted herein, no standards are provided to guide either the government agency or a testator in determining in what situations, if any, such acquisition by legacy would be approved, and it is inferable that the granting, the withholding, or the conditions of granting, approval may vary from case to case according to the discretion of the governmental agency as exercised in an unbounded field [92]*92and unguided by standards of equality of application. The situation thus appears to be comparable to that before the court in Estate of Schluttig (1950), supra, 36 Cal.2d 416, 425, in which it was held that when “the taking of estates by testamentary disposition or succession is a matter of sufferance determinable in accordance with directions of the Nazi officials and their concepts of national sentiment, there is no ‘reciprocal right’ as that term is used in the Probate Code.”
Furthermore, it is to be noted that section 259 of the Probate Code, which is here involved, limits the right of the nonresident alien “to take real property in this State by succession or testamentary disposition,” to those instances where there is “a reciprocal right upon the part of citizens of the United States to take real property upon the same terms and conditions as residents and citizens” (italics added) of the country of the alien’s residence. That the terms and conditions on which foreigners may acquire real property in Yugoslavia by testament differ from those on which it may be so acquired by Yugoslav citizens is a reasonable inference to be drawn from the decree of July 16, 1946. Although the provisions of the decree of March 20, 1948, and of the interpretation thereof by Yugoslav authorities which is set forth in the consular letter of January 19, 1949, do not directly establish Yugoslav law as of the date of the testator’s death herein (March, 1947), they do tend to confirm that under the decree of July 16, 1946, a differentiation was established between the right of foreigners who are natural heirs of the deceased to succeed to real estate “by legal inheritance” and any rights claimed by other foreigners to take real estate “by legacy (in case of death).”
Appellant contends, nevertheless, that the provisions of article II3 of a treaty entered into in 1881 between the United States and the Kingdom of Serbia (of which the present Republic of Yugoslavia is the successor government) and certified by the Secretary of State of the United States as re[93]*93maining in full force and effect between this country and Yugoslavia, are applicable and controlling in appellant’s favor on the issue of reciprocity. It may be noted, that the first paragraph of article II seemingly treats only of “citizens of the United States in Serbia [Yugoslavia] and Serbian [Yugoslav] subjects in the United States,” rather than, as is the situation in the present case, of a United States citizen who dies in the United States and leaves property to a Yugoslav subject who is in Yugoslavia, and therefore is not here applicable. Even if we assume its applicability in that respect, however, the rights granted are only those given by each of the contracting nations “to the subjects of the most favoured nation, ’ ’and do not purport to equal the rights given or guaranteed by each of the contracting nations to its own citizens. Consequently the treaty provisions do not establish the reciprocal rights required by the Probate Code.
Testimony by the Ambassador of Yugoslavia to the United States that “Yugoslavia accords to citizens and residents of the United States their full and equitable rights of inheritance under . . . the Convention [treaty] of 1881, . . . [and that] whether the Convention itself is applicable or not . . . Americans do have their full, complete and unabridged rights of inheritance to inherit from their relatives or from their estate in Yugoslavia,” serves at most to create a conflict in evidence as to the ultimate fact and is not controlling on the issue of reciprocity. Upon the record we are bound to hold that the evidence is not as a matter of law insufficient to support the finding of the trial court that at the time of decedent’s death reciprocal rights within the meaning of the applicable statute did not exist as to real property.
As to whether reciprocity existed with respect to personal property, there is a substantial conflict of opinion evidence and both appellant and respondent urge that evidence of that nature, offered by the other, was improperly received. We need not pass upon such contentions, however, because it does not appear that the errors, if any, in regard to the admission of opinion evidence were prejudicial. In the light [94]*94of the other evidence upon the subject, hereinafter mentioned, we do not think it likely that a different result would have been reached in the trial court if the disputed opinion evidence had not been received. (Cal. Const., art. VI, § 4½.)
Aside from the expressions of opinion, a copy of the Yugoslav Constitution, as hereinabove mentioned, and copies of Yugoslav decrees governing transactions with foreign countries and their nationals were received in evidence without objection, and such Constitution and decrees in themselves support the finding of the trial court that reciprocity did not exist with respect to personal property. Provisions of the Constitution have already been mentioned. The first of the decrees, which became effective September 7, 1945, provides: “630. By virtue of Article 2 of the Resolution of November 30, 1943 on the Supreme Legislative and Executive People’s Representative Body of Yugoslavia as a provisional organ of the supreme people’s authority in Yugoslavia and in connection with the Resolution of August 10, 1945 covering the change of name of the Antifascist Council of National Liberation of Yugoslavia into Provisional People’s Assembly of the Democratic Federative Yugoslavia, and at the suggestion of the Minister of Finance, the Presidium of the Provisional People’s Assembly of the Democratic Federative Yugoslavia decree.
“The Law
“REGULATING PAYMENT TRANSACTIONS WlTH FOREIGN Countries
“(Foreign Exohange Law)
“Basic Rules
“Article 1
“All financial transactions with foreign countries, as well as all transactions within the country in relation to foreign countries that may affect the development of the credit balance of our country and the international value of our domestic currency (foreign exchange transactions) are subject to the control of the Federal Minister of Finance (foreign exchange control).
“Article 2
“Primarily the following transactions are subject to control.
“ (a) All transactions within the country and with foreign countries: in foreign exchange, claims and debts in foreign currency and other values in foreign currency;
[95]*95“(b) All transactions with foreign countries: in domestic currency, credits and debits in domestic currency and other values in domestic currency;
“(c) All transactions with foreigners within the country, causing changes in property relations between our country and foreign countries; and . . .
“Article 3
“The term transaction from Articles 1 and 2 as used in this law means the transfer of values and metals and payments, it also means the establishment, cancellation and change of obligations and actual rights to values and metals, as well as changes of holders of rights and obligations.
“Article 4
“Permission must be had for transactions described in Articles 1 and 2 of this Law according to foreign exchange regulations.
“Article 5
“It is forbidden to conclude business in the country the amount of which in domestic currency is tied to gold or some foreign currency. . . .
“Article 6
“(1) The Federal Minister of Finance as the supreme foreign exchange authority, exercises his control over foreign exchange through: [various agencies] . . .
“ (2) The Federal Minister of Finance regulates the limits of jurisdiction as between the foreign exchange authorities in regard to the exercising of foreign exchange control, be it by Regulations from Article 25 of this Law, or by separate decisions.
“Article 7
“(1) Transactions, subject to foreign exchange control according to this Law, may be conducted only by persons and establishments authorized to do so by the competent foreign exchange authorities, unless the conduct of such business is permitted by the foreign exchange rules themselves. . . .
“ Article 8
“The National Bank, whenever authorized by the Federal Minister of Finance, may at any time request the holders in the country to offer for sale to the National Bank all their foreign exchange (regardless whether it be in the shape of claims in foreign currency, checks, drafts, etc.), foreign cur[96]*96rency, foreign values and precious metals. If the National Bank decides to buy, it shall fix the terms. . . .
“Article 12
“(1) The term ‘devisa’ as used in the foreign exchange regulations means a claim abroad on whatever basis, in whatever currency, regardless of the manner of disposal. . . .
“Article 13
“(1) The term foreigners as used in this Law means all persons and corporations with permanent residence or seat abroad, regardless of citizenship of persons and ownership of enterprises.
“ (2) The term domestic persons means all persons and corporations with permanent residence or seat within the country, regardless of citizenship of persons and ownership of enterprises. . . .
“Article 16
“ (1) The penalties for foreign exchange infractions are:...
“2. Confiscation of objects or values constituting the foreign exchange infraction, in full or in part. . . .
“ (2) The Federal Minister of Finance shall pronounce penalties. ...
“ Article 25
‘ ‘ The Federal Minister of Finance shall issue more detailed rules, regulations and decisions for the execution of this Law, upon consulting the National Bank. ...”
The second decree, effective October 25, 1946, confirms the decree of September 7, 1945, and amends it in various respects which appear to be largely immaterial here. However, article 24 of the second decree provides that “The Minister of Finance of FPRY is herewith authorized to issue regulations, instructions, orders and decrees for the execution of this law,” thus confirming the apparently unlimited power of the Minister of Finance over foreign exchange transactions.
Appellant urges that the “Foreign Exchange Law” has no materiality in relation to the question of reciprocity; that it is merely “regulatory of foreign exchange and has no reference whatever to rights of inheritance.” But a reading of the entire substance of the documents mentioned makes it apparent that the trial court was justified in reaching the conclusion that under Yugoslav law a citizen of the United States, at the time of decedent’s death, had no definitely ascertainable and enforceable right to receive Yugoslav property by [97]*97testament, and that the receipt of any such property would depend in each case upon the largely, if not entirely, uncontrolled discretion of the Minister of Finance. This is far different from a standardized regulation which might merely delay the transmission of gold, money, or other stores of value from one nation to another. (See Estate of Schluttig (1950), supra, 36 Cal.2d 416, 425; cf. Estate of Miller (1951), supra, 104 Cal.App.2d 1, 12, 13.) Here it is pertinent to observe, as was declared in Estate of Blak (1944), 65 Cal.App.2d 232, 238 [150 P.2d 567] : “The ‘right’ to take property by inheritance and the ‘right to receive’ that inheritance by payment in money, have long been recognized as part of the substantive, legal and sanctioned incidents of the normal legal order of society. . . . The ‘right’ to receive the benefits of the inheritance is a necessary and inherent corollary to the ‘right’ to take by inheritance. One is not separable from the other. The one includes the other. If the right to take exists . . . the right to receive exists ...”
Upon the record before us, which includes the Constitution and the Resolutions and Decrees of Yugoslavia as above mentioned, we cannot hold that as a matter of law the trial court was not justified in concluding that whether a citizen of the United States, as of the date of decedent’s death, might in any particular case actually receive possession and marketable title to real estate in Yugoslavia devised to him or personal property, or its value, bequeathed to him, was a matter of grace or individual indulgence rather than of right based on uniform law.
By reason of our conclusion that no prejudicial error is shown and that the evidence supports the finding of the trial court that on the date of decedent’s death reciprocity as contemplated and defined by our law did not exist in Yugoslavia with respect to either real or personal property, it becomes unnecessary to consider or decide respondent’s further contentions.
The judgment is affirmed.
Gibson, C. J., Shenk, J., Edmonds, J., and Spence, J., concurred.