Wanson Estate

Opinion by Mr. Justice Roberts, Rudolf Wanson died March 26, 1957, a resident of Montgomery County, Pennsylvania. By will dated April 23, 1956, he bequeathed the residue of his estate equally to four relatives and a friend, all citizens and residents of Rumania.1 The will also provided: “. . . if at the time of my death the Laws of the United States of America, or the Laws of Romania prevent or prohibit the distribution of my Estate to the above-named Citizens of Romania, then and in that event, I give devise and bequeath the aforementioned remainder of my Estate . . . to my friend, Marion Hampel, of Philadelphia, Pa.....” The Orphans’ Court of Montgomery County held that at the time of testator’s death the Pennsylvania “Iron Curtain Act”2 prevented distribution of his estate to the Rumanian legatees. Acting pursuant to the testamentary provision quoted above, therefore, the court awarded the residue of the estate to decedent’s Philadelphia friend. This appeal from that determination is taken by testator’s primary beneficiaries in Rumania. Appellants contend that the Act did not prevent or prohibit distribution to the Rumanian legatees and that the court erroneously ruled, that the Act operated to defeat the primary gifts under the will. The litigants agree with the court’s statement: “Decedent’s intent is clear. If his estate were not able to be distributed to the Rumanian legatees under the law as it existed at the time of his death, distribution was [112] to be made to the alternate legatee.” It is apparent that testator’s primary concern was for his Rumanian relatives and friend and that his gift to the alternate residuary legatee in Philadelphia was intended to take effect only if there was no possibility at the time of his death that the Rumanian beneficiaries would ever receive the benefit and enjoyment of his gift. The sole and controlling question on this appeal, therefore, is whether the Act of 1953 prohibits or prevents distribution of this testamentary bequest to the Rumanian beneficiaries. Section 2 of the “Iron Curtain Act”3 provides: “Whenever it shall appear to the court that if distribution were made a beneficiary would not have the actual benefit, use, enjoyment or control of the money or other property distributed to him by a fiduciary, the court shall have the power and authority to direct the fiduciary (a) to make payment of the share of such beneficiary at such times and in such manner and amounts as the court may deem proper, or (b) to withhold distribution of the share of such beneficiary, convert it to cash, and pay it through the Department of Revenue into the State Treasury without escheat.” We find nothing in the statutory language of the Act or its objectives which expressly or impliedly prevents or prohibits distribution of a decedent’s estate to a beneficiary not a resident of the United States. The Act contains no prohibitory words or mandate against distribution to such beneficiaries. Foreign-residing beneficiaries are not made ineligible to “take” testamentary bequests, nor does the Act bar or preclude such gifts to them. [113] If the statute was designed to keep testamentary gifts from being awarded or distributed to foreign residents, the statutory command would have been expressed in imperative and prohibitory language rather than in permissive and protective terms. The Act does not establish a proscriptive rule outlawing distribution to foreign legatees. Instead, it authorizes the court, on an ad hoc basis, to determine the time and manner of distribution4 or, in the alterna [114] tive, to direct a protective, custodial, interest-bearing deposit until the money can safely and feasibly be placed in the beneficiary’s hands.5 See Bokey Estate, 412 Pa. 244, 194 A. 2d 194 (1963). In Belemecich Estate, 411 Pa. 506, 192 A. 2d 740 (1963),6 this Court emphasized the precautionary and safekeeping objectives of the Act. We said its purpose was: “. . . to protect the moneys, physically in America, but belonging to people who fatefully find them-' selves behind the Iron Curtain of Communism. It is a commendable and salutary piece of legislation because it provides for the safekeeping of these funds even with accruing interest . . . .” 411 Pa. at 508, 192 A. 2d at 741. We conclude, therefore, that the “Iron Curtain Act” did not prevent or prohibit distribution of decedent’s residuary estate to his Eumanian legatees and that decedent’s primary gifts to them are undefeated, valid and operative under the terms of the will.7 [115] The decree is reversed and the matter is remanded to the court below with directions to enter an appropriate decree awarding the residuary estate to the primary beneficiaries in accordance with testator’s will and to direct distribution under the provisions of the Act of July 28, 1953. Decree reversed. Costs to be paid by the estate. Footnotes [1] Testator’s will directed that if any of the five beneficiaries predeceased him, their shares should be distributed equally among such of the beneficiaries as survived him. [2] Act of July 28, 1953, P. L. 674, 20 P.S. §§1155-1159 (Supp. 1964). See also Act of April 18, 1949, P. L. 512, §737, added by Act of February 23, 1956, P. L. (1955) 1084, §6, 20 P.S. §320.737 (Supp. 1964). [3] Act of July 28, 1953, P. L. 674, §2, 20 P.S. §1156 (Supp. 1964). It is to be noted that although the Act is popularly known as the “Iron Curtain Act”, it applies to “any legatee, devisee, distributee or other person . . . who is not a resident of the United States, its territories or possessions.” Act of July 28, 1953, P. L. 674, §1, 20 P.S. §1155 (Supp. 1964). [4] The provisions of the “Iron Curtain Act” sanction a transfer of funds, creating thereby a situation analogous to the relationship between a guardian and his ward. Rather than prohibitory, the Act is protective, having concern always for the best interests of the legatee. It should be noted that the arrangements which may be set up for a legatee’s benefit under the Act are quite flexible, allowing the court to design a procedure of distribution and actual transfer of assets to fit the circumstances of each particular case presented to it. In addition to awarding the distributive share to the Commonwealth to be held in custodia legis until the legatee can prove that he will have the actual benefit, use, enjoyment or control of the money, courts may also distribute the legatee’s share in small amounts over a period of time. In Dopierala Estate, 40 Erie Co. L.J. 163, 7 Fiduc. Rep. 262 (Orphans’ Ct. 1957), a trustee was appointed for the foreign beneficiary and authorized to withdraw not more than $50 every 60 days for the purchase of packages of necessities to be sent to the beneficiary, such practice to continue so long as the beneficiary acknowledged receipt of the packages and requested that they continue to be sent. In Zubko Estate, 73 Montg. Co. L. Rep. 341, 12 Pa. D. & C. 2d 557 (Orphans’ Ct. 1957), President Judge Taxis followed the procedure adopted in Dopierala and appointed a trustee for the distributive shares of the foreign beneficiaries, permitting the trustee to withdraw up to $75 in each 60 day period for the purchase of parcels of necessities to be sent to the beneficiary. In Sutkowski Estate, 10 Fiduc. Rep. 498, 20 Pa. D. & C. 2d 738 (Orphans’ Ct. Phila. 1960), the court found that the Polish beneficiary would receive the possession, use, benefit and control of his legacy and made an award to him. The court noted, however, [114] that: “The amount is less than $1,000. If it exceeded that amount, not more than $100 should be initially remitted and the personal representative would have the responsibility of making periodical distribution, having first produced evidence of the actual receipt of each preceding payment.” [5] Section 4 of the Act provides that when a beneficiary for whose benefit money is being held in the State Treasury can prove to the satisfaction of the court that he will have “the actual possession, benefit, use, enjoyment or control” thereof, the court shall direct payment to him of that money with interest at 2% per annum from the date the money was paid into the Treasury. Act of July 28, 1953, P. L. 674, §4, 20 P.S. §1158 (Supp. 1964). [6] The case was reversed by the Supreme Court of the United States, 375 U.S. 395, 84 S. Ct. 452 (1964) on the grpund that the Treaty of 1881 between the United States and Serbia (now part of Yugoslavia) compelled payment of the money. This Court’s interpretation of the nature and purpose of our Act is not affected by the decision regarding the effect of the 1881 Treaty. [7] Appellee urges that the appeal should be dismissed “because of laches.” The inaction complained of is directed to appellants’ delay in seeking review of the initial determination in the court [115] below. However, appellee concedes on the record that appellants were not given proper notice of the filing of the account. The court below granted the petition for review because of the absence of notice. We find no reason to disturb or reverse the exercise of the hearing court’s discretion in granting review.