Kasula Estate

318 A.2d 338, 456 Pa. 62, 1974 Pa. LEXIS 501

• Court: Supreme Court of Pennsylvania
• Decided: March 25, 1974
• Docket: Appeal, No. 79
• Status: Published

Opinions

Opinion by

Mr. Justice Roberts,

In 1972, appellants petitioned the Orphans’ Court Division of the Court of Common Pleas of Allegheny County to set aside a 1969 decree of distribution. The court refused the requested relief and dismissed the petition. We affirm.

On June 25, 1949, decedent, Mihaly Kasula, then a resident of the Soviet Union, died intestate. For a number of years decedent had resided in Allegheny County and had been employed by the United States Steel Corporation. His estate’s only asset was $2,949.80 in the corporation’s pension fund. Letters of administration were granted to decedent’s grandson, a resident of Allegheny County, on October 30, 1961.

On September 6, 1963, the orphans’ court entered a decree which, inter alia, awarded to the Commonwealth, as custodian, the sum of $1,524.53, representing intestate shares of a purported son and daughter of decedent said to be living in the Soviet Union.¹ These shares were to be held by the Commonwealth without escheat subject to the provisions of the Act of July 28, 1953, P.L. 674.² Subsequently, on August 12, 1969, upon petition of the administrator, a final decree of distribution was entered. That decree directed the Commonwealth to repay to the estate the sums held, and directed the administrator to distribute that amount to known intestate heirs, three grandchildren of decedent living in the United States. Pursuant to that decree, the balance of the estate was distributed.

Almost three years thereafter, on June 19, 1972, a petition to set aside the 1969 decree of distribution was filed by the substitute attorney in fact for the alien claimants.³ That petition was dismissed. Appellants’ exceptions were then argued before the court en banc and dismissed. This appeal ensued.

The critical question presented is whether appellants offered sufficient proof to establish their claim as heirs of Mihaly Kasula. The orphans’ court as factfinder and the court en banc determined that they did not. We conclude that this determination is supported by the evidence, and therefore affirm.

Manifestly, a court may not decree distribution to persons whose identity as proper beneficiaries of a decedent’s estate has not been established. In cases such as this, involving intestacy, two facts must be proved. A claimant must demonstrate not only Ms “identity as a qualified statutory heir but also that such an heir in fact existed.” Demczuk Estate, 444 Pa. 212, 218, 282 A.2d 700, 703 (1971).

The burden of proving heirship rests with the claimant. Demczuk Estate, supra; Krepinevich Estate, 433 Pa. 78, 248 A.2d 844 (1969); Bokey Estate, 412 Pa. 244, 194 A.2d 194 (1963); Davis Estate, 365 Pa. 605, 76 A.2d 643 (1950); Link’s Estate (No. 1), 319 Pa. 513, 180 A. 1 (1935). The standard of proof necessary to sustain that burden was set forth by this Court in Bokey Estate, supra at 250, 194 A.2d at 197. We there said that “ ‘the evidence must be so clean-, precise and definite in quality and quantity as to satisfy the court below that the relationsMp claimed existed.’ (Emphasis supplied)” (quoting Link’s Estate (No. 1), 319 Pa. 513, 522-23, 180 A. 1, 5 (1935)). Here, neither the auditing judge nor the court en bane were satisfied that appellants established the claimed relationship.

Both the existence of foreign heirs and specifically appellants’ identity as heirs were in controversy here. During the twenty-three years following decedent’s death, appellants presented only the following evidence in support of their claim. On August 16, 1960, Iniurcolleguia, an association of lawyers in Moscow, U.S.S.R., dispatched a letter to the TJMted States Steel Corporation Pension Fund. That letter stated that a certain Nikolai Kasula, an appellant here, asked the association to represent Mm as a beneficiary of Ms father’s estate. Approximately one year later, another letter was sent. That letter stated that the association also represented one Anna Fentsik, a daughter of decedent, who had also survived her father. On May 15, 1969, a power of attorney was executed before a Soviet notary by persons purporting to be Anna and Nikolai, and forwarded to the United States. No other evidence was offered by appellants.

The evidence in opposition to appellants’ claim established that repeated requests by counsel for the administrator for evidence of appellants’ entitlement to share in the estate were unproductive. His numerous letters remained unanswered. Moreover, decedent’s grandson testified that neither his mother nor his grandfather (who had lived with him when he resided in the United States) ever mentioned the existence of any children living in the Soviet Union. He further testified that he had “little interest in the relatively small sum of money involved . . . .” The court, in evaluating the evidence, declared that “[the grandson’s] testimony impressed us as being true.”

On the evidence before it, the orphans’ court concluded that appellants had failed to prove either the existence of any foreign heirs or their own identity as intestate beneficiaries. The court consequently refused to disturb the earlier 1969 adjudication and dismissed appellants’ petition. This action was approved by the court en banc.

This Court’s scope of review in cases of this nature is well defined. On appeal, it is not for the appellate court to assess the credibility of the testimony. Our evidentiary review is limited to a determination of whether the findings of fact of the chancellor are supported by sufficient, competent evidence.

“We will not retry this case. The question for us to consider is, first, whether there is evidence to support the findings of fact and whether the findings of fact support the decree. The court below and the court en banc made a thorough review of all the evidence and arrived at certain findings. If the evidence supports the findings and the findings in turn justify the decree, the decree will not be set aside . . . .” Pusey’s Estate, 321 Pa. 248, 260, 184 A. 844, 849 (1936) (emphasis in the original, citations omitted); accord, Shewchuk Estate, 444 Pa. 249, 260, 282 A.2d 807, 313 (1971); Mintz Trust, 444 Pa. 189, 196, 282 A.2d 295, 299 (1971).

Appellants contend, however, that the court’s findings were contrary to the evidence. Their position, it would appear, is that the recitals of kinship set forth in a power of attorney executed before a notary are conclusive proof of the facts asserted. This Court has held precisely to the contrary. Bokey Estate, supra at 251-52, 194 A.2d at 197-98.⁴ Here the power of attorney shows only that persons purporting to be decedent’s children appeared before a notary, asserted their claims of kinship, and in his presence executed the document.⁵ As in Bokey Estate, the writing is an assertion, not proof.⁶ It is obvious that this document alone or in concert with appellants’ other evidence fails to establish by clear, precise, and definite proof, as required by Bokey Estate, either the existence of any children in the Soviet Union or the affiants’ identity as decedent’s heirs.⁷

In the absence of such proof, there is no basis for disturbing the court’s decree.⁸

Decree affirmed. Each party pay own costs.

1 Neither appellants’ identities nor entitlement were then adjudicated. In his 1963 petition captioned “petition to pay balance for distribution,” the administrator clearly questioned the existence of any Soviet heirs, there stating:

“There has been no verification of the existence of Nikolai . . . and Anna . . . both of whom are supposed to be living in the TJ.S.S.R. . . .

“. . . [S]aid petitioner . . . does not believe the existence of said individuals in the TJ.S.S.R. and therefore requests the court at this time to make distribution [awarding a two-thirds interest to the state treasury without escheat] for a limited time, and if the two alleged heirs ... do not claim said funds, then said monies to be decreed to [the known heirs].”

This decree was only a partial distribution to known heirs and payment of the balance to the state treasury without escheat. The administrator proposed this distribution to avoid suspending the entire estate for an indefinite period. Because of uncertainty in 1963 as to the existence of a possible aunt and uncle, the administrator merely requested the court to hold the balance of the estate for a reasonable time to see if any competent evidence would surface showing the existence of any other heirs. The 1963 decree by its own terms was not final. Only after waiting six years, during which no evidence of entitlement was produced, did the administrator, in 1969, petition the court to decree final distribution. The dissent mistakenly elevates a 1963 partial custody-type distribution to the status of a final adjudication of appellants’ kinship.

2 This Act, frequently called the “Iron Curtain Act,” was since declared unconstitutional, Demczuk Estate, 444 Pa. 212, 282 A.2d 700 (1971) ; see Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664 (1968), and was repealed. Act of June 30, 3972, P.L. 508, No. 164, § 3.

3 A power of attorney executed in the Soviet Union on May 15, 1969, named the New York law firm of Wolf, Popper, Boss, Wolf & Jones to represent the foreign claimants. New York counsel subsequently nominated James Francis Lawler, Esq., of Philadelphia as substitute attorney in fact.

4 See also Bobko v. Ukrainian Workingmen’s Ass’n, 71 Lackawanna Jurist 86 (Pa. C.P. 1970) ; Slotkin Estate, 40 Pa. D. & C.2d 334 (O.C. Phila. 1965), aff’d per curiam, 423 Pa. 628, 222 A.2d 597 (1966) ; Martinzik Estate, 25 Pa. D. & C.2d 701 (O.C. Phila. 1962).

5 Any notion that the Act of April 27, 1876, P.L. 49, § 1, 28 P.S. § 223 (1958), compels the factfinder to accept as true an affiant’s assertions of kinship is contrary to this Court’s express holding in Bokey Estate, 412 Pa. 244, 194 A.2d 194 (1963). There this Court, speaking through Mr. Justice (now Mr. Chief Justice) Jones, unequivocally held that the statutory phrase “prima facie evidence of the matters therein set forth” refers only to matters set forth by the notary, not to those of the affiants. Id. at 252, 194 A.2d at 198.

Moreover, this Court in Bokey specifically held: “ ‘The essence of the notarial certificate is that the document has been executed, and that the notary knows that he is confronted by the signer, and that the signer is asserting the fact of his execution.’ ” Id. at 252, 194 A.2d at 198 (quoting Scott v. Penn Title Ins. Co., 49 Berks County L.J. 36, 39 (Pa. C.P. 1956)). See Sheaffer v. Baeringer, 346 Pa. 32, 36, 29 A.2d 697, 699 (1943).

6 The dissent inaccurately states the issue in this case. Neither this Court nor the orphans’ court has questioned either the validity or authenticity of appellants’ power of attorney. That American lawyers may, in accordance with the terms of the power, represent appellants before our courts and assert whatever rights appellants may have is not questioned. The power of attorney was here given the same recognition and effect as was done in Demczuk Estate, 444 Pa. 212, 282 A.2d 700 (1971), and Bokey Estate, 412 Pa. 244, 194 A.2d 194 (1963). A claimant’s right to have his interests advanced by counsel designated in a power of attorney must not be confused with the issue of proof of kinship in this case. Here the issue is whether the adjudications of the orphans’ court and the court en banc that appellants did not prove their heirship are supported by the record.

7 See Demcmk Estate, 444 Pa. 212, 282 A.2d 700 (1971), in which the applicable burden of proof was satisfied. In Demcmk, in addition to producing a power of attorney, the claimant demonstrated his identity by introducing affidavits of heirship executed by members of the village in which decedent’s family resided, and copies of birth, death, and marriage certificates. Collectively, this evidence proved claimant’s identity. Id. at 220-21, 282 A.2d at 704-05. See Comment, The Demise of the “Iron Curtain” Statute, 18 Vill. L. Rev. 49, 65 (1972). Obviously, such proof is lacking in this case.

For further discussion of the necessity of and means for proving kinship and identity, see .Tones, Pennsylvania Custodial Statutes : Orphans’ Court Proceedings for Recovery of Nonescheated Funds, 39 Temp. L.Q. 153, 164-68 (1966).

8 The dissent erroneously contends that our decision is “an unjustified intrusion into the area of foreign affairs.” However, Zschernig v. Miller, 389 U.S. 429, 88 S. Ct. 664 (1968), and Demczuk Estate, 444 Pa. 212, 282 A.2d 700 (1971), upon which the dissent relies, surely do not stand for the proposition that courts may not require proof of heirship before distribution is decreed. Requiring all claimants — foreign and domestic — to prove their entitlement is fundamental to the sound administration of estates and does not offend foreign policy.

Indeed, it has recently been observed: “The kinship of an alien heir in cases of intestacy, and the existence and identity of the heir are . . . usual matters of proof necessary to establish a valid claim to property .... Such qualifications are unaffected by Zschernig since these judicial inquiries are . . . objective and reasonable. Inquiry into these matters of proof would appear to proceed from a state’s right and duty to guarantee a just distribution of an estate . . . .” Recent Case Note, 72 Dick. L. Rev. 675, 681 (1968) (footnotes omitted).

Here, claimants were faced with the same burden as American claimants. Any claimant is required to prove his identity and kinship before the orphans’ court can make an award in his favor.

The dissent erroneously argues that a foreign claimant having executed a power of attorney asserting the affiant’s kinship is entitled to share in a decedent’s estate without producing corroborative evidence even in the face of other competent and contradictory evidence which the court finds credible. If the dissenting view were to obtain, a foreign claimant by use of a power of attorney would prevail with less evidence of heirship than any other claimant.