Estate of Loik

426 A.2d 1134, 493 Pa. 512, 1981 Pa. LEXIS 762

• Court: Supreme Court of Pennsylvania
• Decided: March 13, 1981
• Docket: No. 82
• Status: Published

Opinions

OPINION

LARSEN, Justice.

The decedent, George A. Loik, was born in 1903 in Vao, Estonia. He emigrated to the United States and, on April 19, 1974, married one Elizabeth Griesbach, the appellee herein. On September 25, 1977, the decedent died a resident of Montgomery County, Pennsylvania, leaving a will bequeathing his probate estate of approximately $4,000.00 to appellee, and a parcel of residential realty located in Abing-ton Township, which was held by decedent and appellee as tenants by the entireties.

On July 21, 1978, appellant herein, Amanda Aleksandrov-na Loik, a resident of the Estonian Soviet Socialist Republic, filed an election to take against the decedent’s will, alleging that she was decedent’s surviving spouse. Appellee filed a petition to vacate the election, and a hearing on the petition to vacate was held on November 5, 1978.

Appellant did not attend the hearing, but rather, appeared through counsel who offered into evidence a power of attorney executed by appellant in favor of a New York law firm; a document that purports to be a Soviet certificate of marriage; and an ex-parte affidavit executed by appellant in the USSR. The court admitted the power of attorney into evidence, and made the “certificate of marriage” a part of the record of the hearing, but reserved ruling on its admissibility after objections were lodged by appellee to its admission. The court sustained an objection to the admission of the ex-parte affidavit on the grounds that it is hearsay. Appellant then rested, and appellee introduced her 1974 certificate of marriage to the decedent into evidence and rested. On February 1, 1979, the court filed an opinion and order holding that the Soviet “certificate of marriage” on which the court had reserved ruling was inadmissible, and vacated appellant’s election to take against the will. Appellant then brought this direct appeal.

The following is an English translation of the aforementioned certificate of marriage:

UNION OF THE SOVIET SOCIAL REPUBLICS CERTIFICATE OF MARRIAGE

DIZ I-ER No.000058

Citizen LOIK/LOYK Georg-Anselm

(Surname, first name, patronymic)

born November 14. 1903

Place of birth Estonian SSR. VAO

(Republic, Territory, Province, City)

and Citizeness HEIN/KHEIN Amanda

(Surname, first name, patronymic)

born September 8. 1906

Place of birth Estonian SSR. Tallinn

(Republic, Territory, Province, City)

entered into matrimony, which was registered in accordance with the Law on: the tenth of August, in the year of one thousand nine hundred forty (August 10. 1940)

(Month, day, year — in figures and words)

After conclusion of the marriage, the following surnames were conferred upon the husband Loik the wife LOIK

Place of Registration Evangelical Lutheran Pauluse Parish of the City of Tallinn

(Designation and location of the agency of Acts of Records of Vital Statistics)

Date issued: April 15. 1978

Seal of the Registrar of Records

Republican Bureau of of Vital Statistics:

Archives of Vital illegible signature

Statistics, Estonian SSR

I, Heidi Meinhardovna JAKOBSON. Registrar of Records of Vital Statistics of the Republican Bureau of Archives of Vital Statistics. Estonian SSR. do hereby certify that the annexed:

Certificate of Marriage of LOIK Georg-Anselm and HEIN Amanda, Series DIZ I-ER, No. 000058: are correct copies of the original authentic certificates issued on the basis of the initial official registration in the pertinent books of acts, and by virtue of the laws of the USSR, are considered to be indisputable proof of the occurrence of said acts of vital statistics.

I am the person entrusted with the safekeeping of said books of acts of vital statistics, and I am authorized by law to issue the foregoing documents.

Seal of the

Republican Bureau of Archives of Statistics,

Estonian SSR

April 6,1978

Registrar of Records of Vital Statistics,

Estonian SSR:

(illegible signature) (H. JAKOBSON)

Pursuant to section 5328(b) of the Judicial Code, Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S.A. § 5328(b),¹ this document is admissible if it is a copy of the official Soviet marriage records or marriage certificate. But, if it is merely a summary of the matters contained in the official records, it is admissible only upon a showing of good cause and reasonable opportunity to all parties to investigate its authenticity and accuracy.² The court below held that the document is merely a summary of the matters contained in the official Soviet marriage certificate, and denied admissibility because the additional requirements imposed upon a party offering such a summary had not been fulfilled. Appellant contends that this holding is in error, and we agree.

The trial court apparently based its conclusion on the statement in the document that the marriage was registered in the Evangelical-Lutheran Pauluse Parish, and the fact that the document itself was issued from a different location by a government, rather than a church, official. While the trial court’s observations are correct, they overlook the fact that the Evangelical-Lutheran Pauluse Parish is described as an agency of Acts of Records of Vital Statistics, which is the Soviet bureau that issued the certificate. The trial court also completely ignored the designation of the document as a certificate of marriage, the certification that it is indisputable proof of the occurrence of the marriage under Soviet law and, most importantly, the certification that it is a correct copy of the original authentic certificates. When all of these factors are considered, and the document is fairly read as a whole, it must necessarily be construed to be a copy of the official Soviet marriage certificate. As such, it should have been received into evidence, and the court below erred in excluding the document as merely a summary of the official Soviet records.

Since the lower court reserved ruling on this crucial piece of evidence until after the record had been closed, a practice which we discourage, both parties were placed in the untenable position of not knowing who had the burden of proof, and thus what additional evidence was needed to complete their case. Consequently, we do not reverse, but vacate the decree and remand the case for a determination of the effect of the admission of the Soviet certificate of marriage, see Watt’s Estate, 409 Pa. 44, 185 A.2d 781 (1962), and D’Ippolito’s Estate, 420 Pa. 541, 218 A.2d 224 (1966), and the reception of such additional evidence as the burden of proof and the interests of justice may require.

ROBERTS, J., filed a concurring opinion.

1 . That section provides in pertinent part:

A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication or copy thereof... If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the tribunal may, for good cause shown. .. permit the foreign official record to be evidenced by an attested summary...

2 . The other requirements of section 5328(b) have been met, and are not at issue in this case.