Olsen v. Karadzole

ME. CHIEF JUSTICE HABBISON:

Tony Ginn, a resident of Cascade County, Montana, died intestate on May 30, 1955. In the course of administration of his estate a petition for final distribution was filed, alleging that the heirs consisted of a brother in Oregon, a sister in the Canal Zone and three sisters, a brother, and five children of a deceased brother, all of whom resided in Yugoslavia.

The State objected to distribution and denied that reciprocity of inheritance or reciprocity of transfer existed between the United States of America and Yugoslavia. An order determining heirship was entered on August 15, 1956, following the filing with the court of a certificate and consent executed by the heir residing in the United States.

On January 24, 1957, a petition for determination of reciprocity of inheritance rights was filed on behalf of the heirs residing- in Yugoslavia, and at the conclusion of the hearings thereon a judgment and decree was entered in favor of the nonresident heirs in Yugoslavia, to the effect that reciprocity of inheritance and reciprocity of transfer existed as of the date of death. The State of Montana appealed from this judgment and decree.

The State contends that the district court was in error in finding that reciprocity of inheritance and transfer existed between the United States and Yugoslavia at the date of death; in finding that reciprocity was proven in an amount in excess of $2,097.74; in overruling the State’s objections to certain exhibits offered by the petitioner; and that the evidence is insufficient to sustain the judgment and decree.

It is admittedly true that the burden was upon the foreign heirs under the provisions of section 91-520, R.C.M. 1947, as amended, to establish proof of reciprocity. The State contends that the entire proof required under subdivision 2 of said section 91-520 was based upon the testimony of one Sava Temer, Consul General of Yugoslavia, located in San Francisco. It might be well at this point to set forth the qualifications of Mr. Temer. A law graduate of the University of Belgrade in 1936, he served at the court and practiced law in Zarenianin, Yugoslavia, for about four years until World War II. After the war he entered government service, first going to Germany, and then to a post in the office of the Legal Advisor of the Secretariat of State for Foreign Affairs. There for several years he was a treaty specialist. Appointed Consul on June 24, 1955, for Yugoslavia with his headquarters at San Francisco, California, with jurisdiction over the western states, including Montana. In such position, he is concerned with the legal problems of the Consulate, the bulk of which concern inheritance cases. The State contends by reason of his official government position that Mr. Temer is an interested witness. One can easily understand that the witness would be interested in protecting the rights of citizens of his government, but that would not disqualify him as a witness and goes merely to the weight to be given his testimony. He would be competent to give testimony under the provisions of section 93-1001-14, R.C.M. 1947. The State met the testimony of Mr. Temer with that of Henri Verstappen, but it is obvious that this witness’ personal knowledge was gained prior to the middle of the year 1952, and such information as he had since has been communicated to him by others.

The court was very liberal in respect to Verstappen’s testimony, a great deal of which was hearsay, and irrelevant for any purpose in this case. In any event the testimony of Verstappen did not convince the district court that the testimony of Temer, based as it was upon a multitude of documents, should be disbelieved, nor has it convinced us. An examination of the record and exhibits in this cause, together with the opinion of this court in In re Spoya’s Estate, 129 Mont. 83, 282 Pac. (2d) 452, convinces us that the petitioner established proof of reciprocity, as required by our law, by substantial, credible and sufficient evidence.

As to the second specification of error, being that the district court erred in finding* that reciprocity of inheritance and transfer was not proven in an amount in excess of $2,097.74. Once reciprocity has been proven there is no limitation as to the amount, but even considering the State’s argument, it appears that this contention is based upon the fact that a receipt was produced indicating that one Ronay received $2,097.74 as his inheritance from an estate in Yugoslavia. The State alleges, therefore, that it cannot be contended that any amount in excess of this sum has ever been received by a United States citizen from a Yugoslavia estate. To establish this contention the State asserts that Exhibit No. 19 indicates the value of the estate was 1,505,220 dinars, and at the official rate of exchange the estate would be of a value in excess of $5,000. Exhibit 20, the receipt, is an acknowledgment by the heir that he received the sum of $2,097.74 as all the cash presently available from the estate in Yugoslavia. Exhibit No. 19 indicates that the estate consisted of two parcels of real estate valued at 1,500,000 dinars, together with a long list of chattels. The exhibit further contains this language: “Pursuant to the aforegoing, the court proclaims the decision concerning the remittance of the court deposit and the delivery of the watch and ring, executory, and the decision concerning the transfer of the remainder of the inheritance will become executory upon the payment of the succession duty.” It appears to us that this means that the court ordered the administrator to remit the cash money of 5,200 dinars and the decedent’s silver watch and ring to the heir and that part of the estate would be then distributed, and that as to the remainder of the estate it would be distributed upon the payment of the succession duty, which in another paragraph of the exhibit the heir is invited to pay within 15 days of the day he receives the order to do so. Temer testified that the American heir may do anything he wants with the land in Yugoslavia, sell it, keep it, rent it, whatever he wishes. Even if we assumed there was a limit we do not see that the evidence in this cause can be construed as contended by the State, since it is apparent there was further property not capable of transmittal at the time.

Specification of error No. 3 goes to the overruling of the State’s objection to plaintiff’s exhibit No. 8. This document is a certificate executed by the Minister of Justice of Yugoslavia, the genuineness of his signature is authenticated by the Minister of Foreign Affairs of Yugoslavia, and carries the standard legalization of the document by the United States Embassy at Belgrade. This exhibit was admissible under subdivision 8 of section 93-1001-30, R.C.M. 1947.

Specification of error No. 4 covers the overruling of the State’s objection to plaintiff’s exhibit No. 9. This document is a statement referring to the treaties between Yugoslavia, Czechoslovakia and Poland by the vice president of Yugoslavia, who at the time he executed the document was also Minister of Foreign Affairs. It was objected to on the ground it had no relevancy to any matter involved in this ease. However, while standing alone it might be said that such would be the ease, but taken with the other documents introduced it was merely cumulative, and indicated the relations between the countries mentioned and the testimony indicated that such treaties were still in full force and effect. There was no error in admitting this document.

As to specification of error No. 5, which covers Exhibit No. 10, being an advisory opinion of the Supreme Court of Yugoslavia. This same exhibit was received in evidence in In re Spoya’s Estate, supra (129 Mont. 83, 282 Pac. (2d) 456), and what is said in that case is equally applicable here. We there stated “it was not prejudicial error to receive the exhibit since there was ample evidence without it to sustain the reciprocity issue.” That same situation clearly appears in this case.

Coming down to the final specification of error, being No. 6; that the evidence was insufficient to sustain the judgment and decree in favor of the respondent.

It would unduly burden this opinion to set forth provisions of the documents introduced by respondent to sustain their burden of proof, suffice it to say that in our opinion it was ample. The copies of decrees of Yugoslavia courts before us find that reciprocity exists between the United States and that country and based on such finding further provide for distribution of property located in Yugoslavia to American heirs.

Other than questioning the veracity of the expert testimony of respondents and the authentication of documents offered in evidence the State has offered no contrary evidence.

Finding there is substantial, credible and sufficient evidence in the record to support the judgment and decree of the district court, it is affirmed.

One matter should be referred to in this case. The transcript on appeal consists of two volumes totaling 514 pages. The judgment roll occupies 45 pages, the testimony 182 pages, and 287 pages are devoted to copying exhibits. Of these 287 pages, but 88 are legible, 199 pages reproduced by photocopy method are illegible and a large percentage thereof in addition to being illegible is in a foreign language. Of the 88 pages of exhibits which are legible 35 pages consist of reproduction of printed pamphlets.

The rules of this court with regard to incorporation of exhibits in the transcript were not intended to countenance the wholesale reproduction therein of printed matter, illegible and foreign language documents. In this case counsel found it necessary to bring to this court all the original exhibits because of the state of the transcript. The reading of the testimony herein has presented a task which we should not be reqMred to undertake, interspersed as it is by this voluminous reproduction of illegible material.

That this situation does not again occur an order has been this day entered by this court providing that when it is desired that exhibits be made a part of the record on appeal to this court they shall be authenticated by a certificate of the judge of the trial court thereon or attached thereto and brought to this court in their original form.

We have been liberal in allowing the reproduction of material by photocopy or similar methods, but such abuses of the practice as exhibited in this transcript may require the adoption of stringent rules. We trust that this warning will be heeded and no further action required.

MR. JUSTICES ANGSTMAN and CASTLES concur.