### No. 13220 IN

### THE SUPREME COURT OF 

### THE STATE OF MONTANA 1976

JOSEFA LEVC (nee OIBl&) and 

### IVANA OGRIN 

### (nee 0'B1z.k 

## , Plaintiffs and Respondents,



### THE HONORABLE HOLLIS 

### G. CONNORS, Treasurer of the Stateof Montana, and Keith Colbo, Director, Department of Revenue of the State of Montana, Defendants and Appellants.

Appeal from: District Court of the First Judicial District, Honorable Peter Meloy, District Judge presiding. Counsel of Record: 

### For Appellants: 

### Hon. Robert L. 

### Woodahl, Attorney General, Helena,

Montana Marshall Murray, argued, Kalispell, Montana For Respondents: 

### Thomas F. Dowling argued, Helena, Montana

Submitted: August 31, 1976 Decided:fief 

## 1

## 8

# 1976 Filed:

## P'Tf 7 % ,

'! 1c';cirMr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal from a judgment of the districtcourt, Lewis and Clark County, awarding plaintiffs funds that had escheated to the Stateof Montana. Plaintiffs are the nieces and heirs atlaw 

### of Frank O'Blak who died intestate inBillings, Montana, on June 24, 1970. The estatewas administered by public administration, and after finding no known heirs, it was ordered paid tothe state treasurer as escheated funds in the amount of $8,693.93. When the heirs inYugoslavia learned of their uncle's death they filed this action toclaim the funds. The district court ruled the heirs 

### werewithin the exception tothe twoyear statuteof limitations even though the action 

### was filed

more than two years after the escheated funds had been received by the 

### state treasurer. The heirs

### were granted judgment for the escheated funds. The issue before this Court 

### iswhether the exception to the two-year statuteof limitations for citizens of the United Statesbeyond the 

### limitsof theUnited States, applies tocitizens of Yugoslavia resident inYugoslavia. The statute inquestion, section 91-509, R.C.M. 1947, reads inpertinent part: 

### " 

## * * 

## * Such action must be brought within two (2) years from the date on which themoney or property 

### isreceived by the statetreasurer, saving, however, to infants and persons of unsound mind, or citizens of the United States beyond the 

### limitsof theUnited States, the right tocommence their action atany 

### time within the time limited or two (2) years after their respective disabilitiescease." (Emphasis supplied

# .) Plaintiffs arenot citizens of the United States, but are citizens and residents of the Peoples Republic of Yugoslavia.It is admitted for thiscase that reciprocity of inheritance rights and reciprocity of transfer of funds exist between the United States and Yugoslavia. It is settled by Kolovrat v. Oregon, 366 U.S. 187, 6 L ed 2d 218, 81S.Ct. 922, and Estate of Spehar, 140Mont. 76, 367 P.2d 563, that under the reciprocity provisions of an 1881 treaty and 

### its "most favored nation" clause, Yugoslavian claimants have the same right to inherit their relatives' personal property

as they would if they 

### wereAmerican citizens living inMontana. The relevant portions of the treatiesdirecting that result are set out in the footnotes to the report of Kolovrat. The districtcourt held that the Yugoslavian heirs are entitled to the 

### same exemption thatAmerican citizens have who

are outside the United Statesuntil their disabilityceases and that their disabilityreasonably ceased in this case upon actual notice of the death of their uncle. The Court also indicated that section 91-502, R.C.M. 1947, requires the state to hold escheated property in trust for 10 years within which 

### time it may be claimed by filing an action. We hold that the statuteapplies tothese Yugoslavian claimants as it would toMontana residents. There is no question they are entitled to inherit property on the same basis as

### residents. This 

### is inaccordance with Kolovrat. However, they arenot included in the class of United States citizens outside the United States. Wedo not feel compelled togo beyond the holding inKolovrat and judicially designate them aswithin that class and entitled tothe exception. This exception was enacted in 1943. Atthat 

### timelarge numbers of our citizens 

### were called toduty outside the United States. Presumably this exception was enacted for their benefit until they could return to their homeland.We arereferred to the general rules that limitation statutes making exceptions in favor of persons under disability must be strictlyconstrued and that courts willnot read into statutesof limitation an exemption or disability which has not been embodied therein. If 

### we were toaccept plaintiffs' argument that the statute did not run until they received notice of the death, 

### we would be reading into the statute an additional requirement. Notice of the death of a deceased is not a disability or exception tothe statute. We alsopoint out that the statute inquestion here is

a limitation statute and affects the remedy to assert the right, not the right itself. The right of these heirs to inherit is not in question and 

### is established. The case is remanded tothe district court with direction to apply the two-year statute of limitation inaccordance with this opinion. 

# A concur: 

# L' Chief JusticeMr. Justice Haswell dissenting: I dissent. Inmy view these Yugoslavian claimants are entitled to the property of their deceased relative. The provisions of the treaties held toapply in Kolovrat

v. Oregon, 366 U.S. 187, 81 S.Ct. 922, 6 L ed 2d 218, arebroader than the specific holding required in that case. The following is a quote from one of the treaties held to apply in Kolovrat and is setout in a footnote to Kolovrat atpage 223: "'In whatever relates to

## * * * acquiring and disposing of property of every sort and denomination, either by 

### sale, donation, exchange, testament, or in any other manner whatsoever, 

## * * * the citizens of the two contracting parties shall reciprocally enjoy the same privileqes, liberties, and riqhts, asnative citizens

## * * *.I" (Emphasis added.) Although the decision inthis case necessarily goes beyond Kolovrat because we areconcerned here with a statute of 

### limitations where the right to inherit 

### is conceded, the emphasized portion of the treaty dictates that these heirs have the 

### same privilege as native citizens under the statute of limitations. The treaty requires that inwhatever relates to acquiring and disposing of property, these heirs arethe same asnative citizens. These words do not allow a distinction between the right to inherit, established inKolovrat, and the remedy toobtain that right as affected by a limitation statute. Where the legislature has made an exception for United Statescitizens, the treaty requires that same exception be applied to these heirs. Therefore, because United States citizens are entitled toclaim within two years of actual notice of the death of their deceased relative inYugoslavia, Yugoslavian citizens are entitled toclaim within the same 

### timeperiod and the claim here involved is not barred. Accordingly I would affirm the judgment of the district court.

Justice -5-