Opinion
Hearing Granted Aug. 17, 1944.
Proceeding in mandate by the Farmers & Merchants National Bank of Los Angeles, a national banking association, executor of the estate of Jacob Kahan, deceased, against the Superior Court of the State of California in and for the county of Los Angeles and the Honorable William R. McKay, Judge thereof.
Judgment that writ issue.
Prior opinion, 148 P.2d 445. [Copyrighted Material Omitted] COUNSEL
Bodkin, Breslin & Luddy and George M. Breslin, all of Los Angeles, for petitioner.
Charles H. Carr, U.S. Atty., of Los Angeles, A. Matt. Werner, Gen. Counsel to Alien Property Custodian, and George A. McNulty, Chief, Alien Property Unit, both of Washington, D. C., and J. A. Fridinger, Atty., Alien Property Unit, of Arlington, Va., for Leo T. Crowley, Alien Property Custodian, as amicus curiae, in support of petition.
J. H. O’Conner, Co. Counsel, and S. V. O. Prichard, Asst. Co. Counsel, both of Los Angeles, for respondents.
OPINION
SHINN, Justice.
This is a proceeding in mandate brought by the executor of the estate of Jacob Kahan, deceased, against the Superior Court of Los Angeles County and a judge thereof sitting in probate, seeking a writ directing the court to proceed with the administration of said estate. The will of decedent was admitted to probate the 27th day of November, 1942, and the usual proceedings were had thereafter until the court was asked to confirm a sale of real estate. The court refused to proceed with the hearing or to take further steps in the administration, for the reason that the judge of the probate department where the proceeding is pending was and is of the opinion that the court acted without jurisdiction of the parties in ordering the will admitted to probate, and that the order and all subsequent proceedings are void. The contention is that the proceedings are void because at the time the petition was filed two of the heirs, who are also beneficiaries under the will, resided in Ukrania, Russia, in territory then occupied by the German army; that it was unlawful under the Trading With the Enemy Act, 50 U.S.C.A.Appendix, § § 2, 3, and also physically impossible to communicate with these heirs by wire or by mail, and that they were not notified of the proceedings as required by law. Sections 327 and 328, Probate Code, read as follows:
"§ 327. When the petition is filed, the clerk of the court shall set the same for hearing by the court upon some day not less than ten nor more than thirty days thereafter, and shall give notice of the time and place of hearing by publishing the same in a newspaper published in the county; if there is none, then by three written or printed notices, posted at three of the most public places in the county. If the notice is published in a weekly newspaper, it must appear therein on at least three different days of publication; and if in a newspaper published oftener than once a week, it shall be so published that there shall be at least ten days from the first to the last day of publication, both first and last days being included. If the notice is by posting, it must be given at least ten days before the hearing."
"§ 328. At least ten days before the hearing, copies of the notice must be personally served upon the heirs of the testator and the devisees and legatees named in the will and all persons named as executors who are not petitioning, or mailed, postage prepaid, from a postoffice within this state, addressed to them at their respective places of residence, if known to the petitioner, if not, at the county seat of the county where the proceedings are pending."
Notice of the hearing on probate of the will was duly published. On November 9, 1942, copies of the printed notices were mailed to the heirs, devisees and legatees, at addresses stated in the petition, except that those of the Russian heirs were sent to them by registered mail in care of the Alien Property Custodian, Washington, D. C. On November 27, 1942, at the time of the hearing, proof was made by affidavit of publication and mailing, and there was filed on that day a letter from the Alien Property Custodian reading as follows: "Bodkin, Breslin & Luddy, 1225 Citizens National Bank Bldg., Los Angeles, Cal. Dear Sirs: Re: Estate of Jacob Kahan, dec’d. The Alien Property Custodian acknowledges receipt, by registered mail, of two published copies of Notice of Hearing of Petition for Probate of Will and Codicil of Jacob Kahan, deceased, the hearing being set for November 27, 1942. By General Order No. 5 the Custodian requires a report of any interest of a designated national in this estate. The report is to be made on Form APC-3, herewith enclosed, and the term ‘designated national’ is defined in General Order No. 5, set forth in full in the report form. As provided in General Order No. 6, the Custodian will, within sixty days, determine whether or not he will accept service of the notice. Very truly, (signed) Francis J. McNamara, Assistant to the Alien Property Custodian." By said General Order No. 5, section 503.5 (7 Fed.Reg. 6199), the term "Designated National" is defined as meaning "Any person in any place under the control of a designated enemy country or in any place with which, by reason of the existence of a state of war, the United States does not maintain postal communication" and it is made the duty of executors and certain others to report to the Alien Property Custodian the interest of such designated nationals. General Order No. 6 of the Alien Property Custodian [7 Federal Register 6199], issued under authority hereinafter referred to, reads, in part, as follows: "Sec. 503.6 * * * (a) In any court or administrative action or proceeding within the United States in which service of process or notice is to be made upon any person in any designated enemy country or enemy-occupied territory, the receipt by the Alien Property Custodian of a copy of such process or notice sent by registered mail to the Alien Property Custodian at Washington, D. C., shall be service of such process or notice upon any such person, if, and not otherwise, the Alien Property Custodian within sixty days from the receipt thereof shall file with the court or administrative body issuing such process or notice, a written acceptance thereof. (b) Such process or notice shall otherwise conform to the rules, orders or practice of the court or administrative body issuing such process or notice."
On the 6th day of October, 1943, the Alien Property Custodian filed his written appearance in the proceeding. It has been stipulated that this appearance may be deemed to have been filed at any date after the making and entry of the order admitting the will to probate. Under this stipulation the appearance should be considered as having been made within the time specified in the order, but it should be given no further effect since we regard the mailing of notice to the Alien Property Custodian, his acknowledgment of the receipt of the notice, and his later appearance in the action as of no moment in our decision of the question of jurisdiction to admit the will to probate.
Respondent court gives as its first reason for refusing to act that the mailing of notice is a jurisdictional step in the proceeding to prove a will, and that no notice of the hearing was given to the Russian heirs by mail because the Alien Property Custodian did not, prior to the hearing, accept service of the notice which he had received by mail. And respondent goes further and says that in no event can the court acquire jurisdiction to probate a will if an heir, devisee or legatee is so situated at the time notice is published, or posted and mailed that it is impossible for him to receive actual notice or knowledge of the pendency of the proceeding. We do not agreed with either of these contentions. A consideration of the nature of proceedings to administer upon the estates of decedents, the provisions of the Probate Code relating to the probate of wills, and the cases bearing upon the matter of notice has persuaded us that jurisdiction of the court to admit a will to probate does not depend upon the mailing of notice, but upon publication or posting of notice, as required by the code. We shall discuss later the nature of proceedings to administer upon the estates of decedents and, while what is to be said bears upon the present point, we shall examine first the code provisions.
Section 301 of the Probate Code specifies the county or counties in which wills must be proved and administration of estates had, depending upon the place of residence and the leaving of estate in the county in which administration is sought.
Section 326 reads as follows: "A petition for the probate of the will must state: (1) The jurisdictional facts; (2) Whether the person named as executor consents to act or renounces his right to letters testamentary; (3) The names, ages and residences of the heirs, devisees and legatees of the decedent, so far as known to the petitioner; (4) The character and estimated value of the property of the estate; (5) The name of the person for whom letters testamentary are prayed. No defect of form or in the statement of jurisdictional facts actually existing shall make void the probate of a will."
Concededly, Los Angeles County is the proper county in which to administer the instant estate. Publication of notice as required by section 327, supra, gave the court jurisdiction over the parties, to the extent necessary in a probate proceeding, unless mailing of notice, as required by section 328, was a jurisdictional step. We believe that it was not and that the decisions support our conclusion. Nicholson v. Leatham, 1915, 28 Cal.App. 597, 153 P. 965, 155 P. 98, was an action in equity to set aside an order admitting a will to probate upon the ground that the order was void for failure to take steps essential to the giving of notice to those entitled thereto under sections of the Code of Civil Procedure which are now found in the Probate Code. The court said (pages 600, 601 of 28 Cal.App., page 967 of 153 P.): "As to the first proposition, the contention of appellants is that the courts of this state do not acquire jurisdiction to make an order admitting a will to probate upon a petition in due form filed and hearing had thereon upon proof of publication of notice as required by section 1303, Code of Civil Procedure, from which petition is omitted the names and residences of the heirs of the testator, if such names and residences be known to the petitioner, and that, in the absence of a copy of the published notice being addressed to such known resident heirs, as provided in section 1303, supra, an order made upon such petition admitting a will to probate may be set aside and vacated in a court of equity, regardless of lapse of time. In our opinion, the provisions of section 1300, Code of Civil Procedure [now section 326, Probate Code], as to what the petition for the probate of a will shall contain, other than subdivision 1 thereof requiring a statement of the jurisdictional facts, are, in so far as noncompliance therewith affects the jurisdiction of the court, directory." The reasons which the court gave for the quoted statement are omitted here in the interest of brevity. This holding was approved in Murray v. Superior Court, 1929, 207 Cal. 381, 278 P. 1033, in which it was said that the failure of the petitioner to state the names and addresses of legatees which were known to him would not deprive the court of jurisdiction to pass upon a petition for the probate of a will and objections thereto. And it was said that the power to proceed with the probate of a will attaches upon the production of the will and the filing of the petition pursuant to section 1300 of the Code of Civil Procedure and the publication of the notice provided for in section 1303 of that code. In Stiebel v. Roberts, 1941, 42 Cal.App.2d 434, 109 P.2d 22, where there had been a failure to mail notice to a co-executrix of a petition for a probate homestead, as required by section 1200 of the Probate Code, it was said that the failure to give notice by mail or to personally serve the co-executrix did not affect the jurisdiction of the probate court and that jurisdiction was acquired by the filing of the petition and the posting of notice as required by law. In Security-First Nat. Bank v. Superior Court, 1934, 1 Cal.2d 749, 37 P.2d 69, it was held that the posting of notice of hearing of a petition to settle a trustee’s account and the mailing of notice to one stated in the petition to be the beneficiary of the trust was sufficient to give the court jurisdiction to settle the account, even though the petition failed to state the true names and addresses of the beneficiaries of the trust, as required by section 1120 of the Probate Code, and this notwithstanding the requirement of said section that notice of the hearing must be mailed to all beneficiaries, for the period and in the manner directed by section 1200 of the Code, at their addresses, if known, and if not known, at the county seat of the county where the proceedings are pending, or be personally served upon such persons. It is true that the court held that the judgment roll did not disclose that there had been a failure to give notice as required by law and that the order was therefore not subject to collateral attack, but the decision was to the further effect that the failure of the beneficiary to receive notice because of the trustee’s failure to state his name and address in the petition, as required by section 1120, did not deprive the court of jurisdiction to settle the account.
In view of the broad claims of respondent, to be hereinafter discussed, it seems appropriate that we state somewhat fully our reasons for holding that the applicable code sections call for the mailing of notice only as a matter of convenience and good administration, and not as a step upon which the jurisdiction of the court to initiate administration proceedings depends. In the procedure of giving notice by mail, the first step is compliance with subdivision 3 of section 326. The petition is the logical source of information to one charged with the duty of mailing notice, and to the court, as to the names and addresses of those who are entitled to notice of the proceedings. It is not required that they be stated unless they are known to the petitioner. The petition may be and often is filed by a stranger. If he does not know the names and addresses of those entitled to notice, he is not required to make any effort to ascertain them. Upon the hearing of the petition the court may rely upon the statements of the petition, giving the names and addresses of those entitled to notice, or upon petitioner’s statement that they are unknown. No special duty is imposed upon the court to require proof as to such names and addresses, and it is discretionary with the court to direct such an inquiry or to proceed without it. The entire procedure for mailing may be nullified through the failure of the petitioner to ascertain the names and addresses of the interested persons or his omission to disclose those that are known to him. It is true that the requirement of section 328 for mailing of notice is expressed in mandatory terms, but so is the requirement of section 301 for the statement in the petition of the names and addresses of the interested parties, which has been held to be merely directory. It is consistent with the entire scheme of notice to regard the provisions of section 328 also as directory. The Legislature has recognized the obvious distinctions between proceedings for the administration of estates and adversary proceedings in which jurisdiction may be acquired by substituted service of summons. And it is because of that distinction, no doubt, that in probate matters there is no requirement that inquiry be made by a petitioner for the discovery of names and addresses that are unknown to him as there is where the court is asked to authorize publication of summons. If it had been intended to limit the power of the court to proceed upon constructive service in probate matters to cases in which no more certain methods of giving notice were available, we would expect to find in the Probate Code exacting requirements for the ascertainment of the names and addresses of persons interested in the estate and for personal service of notice upon them if they were in the county or in the state. And if the intention had been to require the giving of notice by mail before the court could proceed, jurisdiction would not have been allowed to rest upon the ignorance of the petitioner, his unwillingness to inform himself, or his willful omission, and there would have been no unnecessary discrimination between those whose names and addresses were stated in the petition and those whose names or addresses, or both, were, for some reason, not stated. Since there is no requirement for inquiry to learn names and addresses which are unknown to the petitioner, and since it has been held that the omission from the petition of names and addresses that are known to the petitioner does not deprive the court of jurisdiction, it necessarily follows that the whole procedure for the mailing of notice was intended to be directory only. This holding does not imply that the failure to comply with the requirements of sections 326 and 328 would not justify the refusal of the court to proceed until the sections had been complied with, nor that such failure might not be prejudicial to the rights of those who were entitled to, but were not given, notice by mail. The failure to give notice by mail does not render void the order admitting the will to probate and therefore subject to collateral attack.
In this view of the requirement for mailing, jurisdiction to admit the will to probate depended upon the sufficiency of notice by publication, which was in due form. Respondent disputes the effectiveness of this notice upon the ground that postal communication between the United States and German occupied territory in Russia was and is prohibited by the Trading with the Enemy Act, supra. We may assume that under the circumstances the Russian heirs would not receive actual notice of the proceedings until the conditions due to the state of war had been removed and somewhat normal living conditions had been restored. But under these assumed facts we believe there was valid service of notice and that the court had jurisdiction in the premises.
The contention of respondent, as we view it, presents two questions. The first is whether it is within the power of the state to enact laws which permit the admission of wills to probate and administration of the estates of decedents upon constructive service of notice to the heirs, devisees and legatees under such circumstances that they cannot receive actual notice of the proceedings. If the answer to this question is in the affirmative, the second question is whether the statutory procedure for constructive service is nullified or was intended not to be applicable in such cases because it cannot result in actual notice.
There is a diversity of authority as to whether the court can acquire jurisdiction by constructive service in adversary proceedings of persons residing in enemy territory. The conflicting holdings are stated in an annotation in 137 A.L.R. 1365 et seq., where the cases are collected, but we deem it unnecessary to review them or the reasoning which the several courts have employed in reaching their conclusions. We are concerned only with the jurisdiction of the court in probate matters. No case has been cited, and we have found none, holding that in the matter of the probate of a will, or initiation of other proceedings for administration upon the estate of a decedent, constructive service of notice of the proceeding is ineffectual as notice to interested parties residing in the territory of a nation at war with the United States or in territory occupied by the armed forces of such enemy. No case has come to our attention in which a claimant to an interest in an estate has been permitted to challenge, by collateral attack, an order or decree rendered after constructive service of notice of the proceeding, upon the ground that it would have been impossible for him to receive personal notice because he had been, during the effective period of the notice, in some inaccessible part of the world beyond the reach of ordinary means of communication.
In considering the probate jurisdiction, it is important to have in mind that an heir has no vested interest in the estate of his ancestor prior to the latter’s death. He takes by virtue of the statutes and not by reason of natural law. While there is some difference of opinion on this point, there is none in this state. In California and almost all of the other states it is recognized that the right to take by succession is subject to such conditions and limitations as the legislature may see fit to prescribe. It has been held in many cases in this state, and in none which we have found has it been questioned, that the broadest burdens, limitations and conditions may be attached to the right of inheritance. Whenever the question has arisen it has been held that the authority of the legislature in such matters is not subject to constitutional limitations. In re Wilmerding’s Estate, 1897, 117 Cal. 281, 49 P. 181; Sharp v. Loupe, 1898, 120 Cal. 89, 52 P. 134, 586; Estate of Porter, 1900. 129 Cal. 86, 61 P. 659, 79 Am.St.Rep. 78; and Estate of Bump, 1907, 152 Cal. 274, 92 P. 643.
One of the limitations upon the right of succession is the right of the ancestor to make disposition of his estate by will, which he may do, except in certain instances, to the exclusion of some or all of his relatives. Other conditions relate to the matter of proof of heirship and to proceedings for the proof of wills and the trial of contests involving their validity. When it is considered that one named by the statute as heir has no interest in the estate of his living ancestor which is entitled to protection on constitutional grounds, and that in the absence of statutes of succession he would take nothing, it may be questioned whether the courts can properly place any limitation upon the authority of the legislature to impose burdens or restrictions upon the estate itself or upon the rights of those who inherit it. We are not called upon to decide that question. The only questions involved are those relating to our Probate Code procedure for the proof of a will. It would sound anomalous to say that although the legislature has the absolute authority to authorize disposition of estates by will, there is some limitation upon its authority to enact procedure for admitting wills to probate or giving effect to them by decrees of distribution. It is nevertheless true that the probate laws of the several states do recognize the right of heirs to an opportunity to assert their interests before they are foreclosed by decree of court, and we do not intimate that this long established and universal policy might not bring in question the conclusiveness of decrees establishing the validity of wills, rendered without giving the heirs any notice of the proceedings or any opportunity to establish their relationships. If it should be conceded that arbitrary laws which allowed such ex parte procedure would for any reason be invalid, it would nevertheless be true, in view of the broad powers of the legislature, that laws which provided for some notice and opportunity to be heard could not be declared invalid unless they were wholly unreasonable and ineffectual. But if we concede for the purposes of our decision that the test of reasonableness may be applied to the actions of the Probate Code dealing with notice, which would be giving the most liberal consideration to the claims of respondent, we would be obliged to hold them valid. Their reasonableness is not to be judged from a comparison of the nature of the notice which they authorize with those requirements for notice which are of the essence of due process of law where vested rights are involved.
In Estate of Davis, 1902, 136 Cal. 590, 69 P. 412, one who claimed to be an heir of the decedent filed a contest of a will after the expiration of the allotted period of one year (as the law then stood) following its admission to probate. She alleged that she had no notice or knowledge of the order admitting the will to probate until more than a year thereafter; that she was living in a foreign country and that the time between the first publication and mailing of notice and the time of the hearing was insufficient to give her notice, and she made the claim that the statute providing for constructive service was therefore unreasonable, that it denied her due process of law, and was void. In rejecting this contention, it was held that service of notice by publication or posting constituted due process, and the court stated (page 596 of 136 Cal., page 414 of 69 P.): "As before suggested, the proceeding as to the probate of a will is essentially one in rem, and in the very nature of things the state is allowed a wide latitude in determining the character of the constructive notice to be given to the world in a proceeding where it has absolute possession of the res. * * * Public policy demands that a will shall have a speedy probate, and the legislature, recognizing that fact, has given the heir, by express enactment, one year after that probate has been decreed, within which time he may attack the will. His rights are in no way concluded by the decree of probate. He has an entire year thereafter in which to attack the will, and he may attack it upon the same grounds and for the same reasons that he could attack it prior to its probate. Even the measure of evidence demanded of him for a successful attack is no different in the two cases. It is thus apparent that, in such a case as the one presented here, due process of law was in no degree denied [Laura Tracy, plaintiff] upon the hearing." This holding was followed on a later appeal in the same matter. Estate of Davis, 1907, 151 Cal. 318, 86 P. 183, 90 P. 711, 121 Am.St.Rep. 105. Constructive service of notice in matters of probate has frequently been held to meet the requirements of due process of law (Security-First Nat. Bank v. Superior Court, supra, 1 Cal.2d 749, 37 P.2d 69; Monk v. Morgan, 1920, 49 Cal.App. 154, 192 P. 1042; Estate of Aldrich, 1905, 147 Cal. 343, 81 P. 1011), although the precise question we are considering has not been decided. The effect of these decisions is that probate proceedings founded upon constructive notice are in accordance with the law of the land and with natural right and justice. We think there can be no doubt as to this. The provisions for constructive service are, in our opinion, far more reasonable than would be procedure which required actual notice to all interested parties in probate matters. Proceedings in probate are for the benefit of all who take, whether as heirs, devisees, or legatees. Administration is necessary before they can come into possession of their interests and their titles are confirmed by orders or decrees of court. They have the right to have administration proceedings conducted expeditiously and the provisions for the giving of notice are designed to avoid unnecessary delay. Constructive service will not always result in actual notice but claimants to an estate have no right to actual notice except when the law expressly gives them that right. There will be occasional cases in which the right to initiate or to defend adversary proceedings will be lost through the failure to receive notice, but these will be few as compared with the vast number of probate proceedings, which, as a rule, are conducted in a routine manner and without contest. The provisions of our probate laws probably strike as fair a balance as is possible between the necessities for prompt and efficient administration, which is desirable in all cases, and the disadvantages which must occasionally be suffered by those who are sought to be reached by constructive service but who fail to receive actual notice of the pendency of the probate administration or of the steps being taken therein. The provisions for constructive service are valid.
We do not agree with respondent’s further contention that the code provisions in question were intended to be effective only where there is reasonable probability that the persons sought to be notified will receive actual notice, or, in other words, that the provisions for notice were "nullified" in the instant case by the circumstance that the Russian heirs could not have received actual notice. In view of our holding that the mailing of notice was directory and not jurisdictional, respondent’s argument, if valid, means that the published notice was no notice at all because the notoriety given thereby would not result in the communication of the facts to the Russian heirs in any manner. But it is clear that the legislature intended constructive service to be sufficient in any situation. There are innumerable circumstances in which constructive service of notice would not result in actual notice. The rights of minor heirs are usually involved in probate matters, and oftentimes the interests of incompetents. And no one, we think, would undertake to say how many people there are whose addresses are unknown to their relatives or who pull up stakes and leave for parts unknown. Undoubtedly it was known to those who framed the laws that wills would be probated in some or perhaps many cases without actual knowledge of the proceedings having been received by all persons legally entitled to notice, but the legislature has made no exceptions for such cases. We find nothing in the probate laws in the nature of an implied limitation upon the jurisdiction to admit wills to probate in cases where, because of unusual circumstances, published notice cannot result in actual notice to the heirs or other persons interested. No other procedure has been prescribed for cases of that sort. Constructive notice of a proceeding for the appointment of an administrator or the admission of a will to probate was intended to be and is binding upon all persons, equally upon those who do not receive actual notice as upon those who do. The facts of the present case present no exception under the code or the decisions. The Russian heirs were legally before the court when the will was admitted to probate, and the order then made was valid.
It will appear from what we have said that jurisdiction to admit the will to probate did not depend upon the giving of notice to the Alien Property Custodian or his filing an appearance in the proceeding. He is before the court in the pending proceeding and will be entitled hereafter to have mailed to him all statutory notices which would otherwise go directly to the Russian heirs and beneficiaries. We think there is no doubt as to his authority to represent their interests in the proceeding to sell property of the estate.
The Trading With the Enemy Act of October 6, 1917, 40 Stat. 411, as amended, was further amended by the First War Powers Act, December 18, 1941, 55 Stat. 839, § 301, 50 U.S.C.A.Appendix, § § 5, 616, so as to give to the President during the time of war the authority, through any agency he might designate, or otherwise, and under such rules and regulations as he might prescribe, to regulate, direct, prevent or prohibit any use, transfer, dealing in or exercising any right, power, or privilege with respect to any property in which any foreign country or a national thereof has any interest or with respect to any property subject to the jurisdiction of the United States. He was given authority by the First War Powers Act, Title III, to vest any property or interest of a foreign country or a national thereof, upon terms directed by him in any agency or person he might designate, the same to be held, administered, liquidated, sold or otherwise dealt with, upon such terms and conditions as he might prescribe in the interest of, and for the benefit of, the United States. And it was further provided in the Act that "Such designated agency or person may perform any and all acts incident to the accomplishment or furtherance of these purposes." By virtue of the authority thus vested in him, the President on March 11, 1942, issued Executive Order No. 9095, 50 U.S.C.A.Appendix, § 6 note, Fed.Reg. 1971, establishing the office of Alien Property Custodian, headed by an officer bearing the same title. By the terms of that order all power and authority conferred upon the President by the Trading with the Enemy Act and First War Powers Act, so far as material here, were delegated to, and vested in, the Alien Property Custodian. The President, on July 6, 1942, by Executive Order No. 9193, Fed.Reg. 5205, amended Executive Order No. 9095. By section 4 of the amending order, the Alien Property Custodian was authorized and empowered to prescribe from time to time regulations, rulings, and instructions, to carry out the purposes of said executive order. The said amending order reads, in part: "5. The Alien Property Custodian is authorized to issue appropriate regulations governing the service of process or notice upon any person within any designated enemy country or any enemy-occupied territory in connection with any court or administrative action or proceeding within the United States. The Alien Property Custodian also is authorized to take such other and further measures in connection with representing any such person in any such action or proceeding as in his judgment and discretion is or may be in the interest of the United States."
We have heretofore referred to General Order No. 6 of the Alien Property Custodian with respect to his appearance after receipt of notice by registered mail. A further provision of that order reads as follows: "This order shall not be construed to limit the authority of the Alien Property Custodian to take any measures in connection with representing any such person (which, as already noted, includes persons in enemy occupied territory) in any action or proceeding as in his judgment and discretion is or may be in the interest of the United States. (d) * * * (3) ‘Enemy occupied territory’ shall mean any place under the control of any designated enemy country or any place with which, by reason of the existence of a state of war, the United States does not maintain postal communication." The Alien Property Custodian in the exercise of authority vested in him by said acts of Congress and said executive orders could vest in himself the interests of the Russian heirs. With these broad powers, and the discretion delegated to him to act as his judgment dictates in the national interest, the Alien Property Custodian undoubtedly has the right to represent the Russian heirs in any and all proceedings relating to or affecting their interests as heirs of Jacob Kahan, deceased, or as devisees or legatees under his will. His acceptance of service and appearance in the action are sufficient evidence that he considers it to be in the interests of the United States that he represent them. His authority to act for them and to take control of their interests was clearly intended to be ample to meet all of the exigencies affecting the national interest that might result from a state of war.
By the terms of Executive Order No. 9193, the orders and regulations made and the action taken by him are made final and conclusive as to his power to exercise the power and authority conferred upon the President by the Trading With the Enemy Act, as amended. It does not rest with the courts to place restraints upon the exercise of his judgment and discretion under the broad powers which he possesses.
With respect to the pending petition for confirmation of sale of real property, it will follow, from the views hereinbefore expressed, that the court has jurisdiction to act upon the petition. The Russian heirs and beneficiaries are before the court in that proceeding by virtue of the notice of the hearing given in accordance with the provisions of section 1200 of the Probate Code. While it does not appear that notice of the hearing was mailed to the Alien Property Custodian, it does appear from the brief filed herein by his counsel, as amicus curiae, that he has knowledge of the pending proceeding. The proof upon the hearing will no doubt show that he has been properly notified.
Although our decision as to jurisdiction is not based at all upon the fact that the notices were mailed in care of the Alien Property Custodian, we are not intimating that the probate court should not require that notice be mailed to him or in his care in cases where there are persons interested in estate matters whom he could properly represent. Unquestionably, he should receive such notice in order that he may have an opportunity to appear in the proceedings if he so desires. This is true even though there is no law or executive order which requires the mailing of notice to him of the initiation of probate proceedings in which the interests of the United States may be affected, and although acceptance of service is optional with him. Executors are required to report the interests of "designated nationals" and we think the courts should decline to make any determination which might affect the interests of the United States until the Alien Property Custodian has been given notice by registered mail and has had an opportunity to decide in accordance with his procedural orders whether he will make an appearance in the proceedings. However, it is compliance with the Code requirements as to notice, and not service upon the Alien Property Custodian, that gives the court jurisdiction to administer the estates of decedents. He is not the actual representative of persons whom he is authorized to represent, in any matters except those in which he issues written acceptance of service. He has appeared in this proceeding and, as we have already stated, is entitled to notice of all subsequent proceedings in which notice is required by the Probate Code.
The writ is granted.
DESMOND, P. J., and PARKER WOOD, J., concur.