467 F2d 1286 Petru v. Maccalman

467 F.2d 1286

Letitia PETRU, aka Letiti Petru, et al., Plaintiffs-Appellants,
v.
Malcolm MacCALMAN, Defendant-Appellee.

No. 26470.

United States Court of Appeals,
Ninth Circuit.

Oct. 16, 1972.

John R. Vintilla (argued), Cleveland, Ohio, Patrick F. Hooks, Townsend, Mont., for plaintiffs-appellants.

Wade J. Dahood (argued), of Knight, Dahood & Mackay, Anaconda, Mont., William R. Taylor, Dear Lodge, Mont., for defendant-appellee.

Before WRIGHT and WALLACE, Circuit Judges, and FERGUSON,* District Judge.

PER CURIAM:

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1

We affirm the granting of a motion for summary judgment in a diversity action based upon a state probate proceeding.

2

Appellants are the Romanian heirs of John Dobrota, a deceased resident of Montana. His estate was probated there, and the probate court signed and entered a decree of settlement of the first and final account and distribution of the estate. The decree sets forth that appellants are heirs of the decedent and are entitled to a share of the estate, provided that "reciprocity is determined to exist between the State of Montana and the Country of Romania where said heirs of John Dobrota, deceased, reside."

3

The decree then provides, in part, that the estate be distributed:

4

" 2/3 thereof to Malcolm MacCalman, Esq., Attorney at Law, and as representative for the foreign heirs and in accordance with the provisions of Section 91-4101 R.C.M., 1947."

5

The Revised Codes of Montana provide that foreign heirs shall not receive property from a Montana estate unless it is established by competent evidence at a hearing to determine heirship that the country of their residence would reciprocally permit the transfer of property to heirs residing in the United States.

6

Appellee, at the time of the distribution of the estate, was the attorney and representative of the foreign heirs. He received the sum of $13,225.66 in the distribution. The Montana courts have not determined whether reciprocity exists between Romania and the United States, and appellee has not paid over the funds to the foreign heirs.

7

Appellants brought this action in the federal district court and allege that "[t]he defendant, ever since July 28, 1966, and until he paid it over to the State Treasurer of Montana by order of the lower court, has been withholding the money belonging to the plaintiffs, and during that period of time, he has made no effort whatsoever to send the funds to its owners, the plaintiffs."

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8

The issue before this court is not whether the Montana reciprocity statute is constitutional; rather, the issue is whether the probate decree required the appellee to distribute the funds prior to a determination by the probate court that reciprocity exists with Romania.

9

The district court held that appellee, in accordance with the terms of the probate decree, "was not obligated to transfer the estate funds and could not do so until reciprocity was established as required by the laws of the State of Montana."

10

We affirm.

*

Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation