I dissent. The majority opinion cites and relies upon the case of In re Kennedy’s Estate, 106 Cal. App. (2d) 621, 235 Pac. (2d) 837, but in that ease the California court found that the foreign heirs had proved to the satisfaction of that court that the laws of the Russian dominated communist state of the People’s Popular Republic of Rumania, being the República Populara Romana, provided reciprocity. Such a finding by a California court is no proof of a fact to be proved in an heirship proceeding in our Montana courts. The Montana statutes and decisions control.
R. C. M. 1947, sec. 91-520, prescribing rights of non-resident aliens, next of kin or heirs to take as heirs by succession or on testamentary disposition, is dependent upon the existence of reciprocal rights of United States citizens to take property in the country of which such aliens are resident, is a part of our substantive law of succession and not merely a procedural statute, and the burden is upon the alien next of kin or heir to prove such *62reciprocity, in order to take as an heir, and if snch proof is not made as in this case, the estate escheats to the school funds of the State of Montana. R. C. M. 1947, secs. 91-520, 91-521, and see amendments; Bottomly v. Meagher County, 114 Mont. 200, 133 Pac. (2d) 770. The estate escheats conditionally in the instant case, as provided by R. C. M. 1947, sec. 91-509. The assets of the estate, less costs of administration, are held in trust by the state treasurer in the school fund for two years, during which time any such foreign heir, upon bringing a proceeding as provided and proving reciprocity, may have judgment therefor. R. C. M. 1947, secs. 91-509, 91-510 and 91-511, are the procedural statutes provided for just such proceedings as this matter before us.
The uncontroverted proof in this proceeding conclusively shows that the next of kin of deceased is two brothers and a nephew, being citizens and residents of the República Populara Romana, a Russian-dominated communist state, behind the ‘ ‘ Iron Curtain.” They made no proof of reciprocity, and this court should take judicial notice of the fact that no such proof can be made of reciprocity. No Montana court should be so naive as to believe that any citizen and resident of Montana, being an heir, next of kin, or beneficiary under a testamentary disposition made and administered in Rumania, could ever receive any dollars or property from behind the “Iron Curtain” from any estate or transaction in the República Populara Romana. Compare, In re Getream’s Estate, 1951, 200 Misc. 543, 107 N. Y. S. (2d) 225. These foreign heirs are the only ones of interest and the only ones who may complain, and they have been provided by statute with two years in which to bring an action and prove their right to take.
These foreign heirs, respondents, understand the law relative to this matter and in their brief set forth that: “The fact of determining heirship and relationship is important even though the persons so determined do not qualify by reason of foreign residency. In this case, if relationship of Rumanian heirs exists but they fail to qualify, the property would escheat to the state *63rather than be distributed to Vonica as a lesser relation (Bottomly v. Meagher County [114 Mont. 220, 133 Pac. (2d) 770, 775]). If the property escheats by reason of failure to qualify, [then] under the provisions of Section 91-509, R. C. M. 1947, the property could still be claimed within two years provided such foreign heirs could prove reciprocity. * * * The matter then becomes a question between the State of Montana and these proven heirs as to whether or not they are qualified to take this property by reason of reciprocity or whether the property es-cheats to the State of Montana.” The foregoing is a correct statement by respondents of the law applicable in this proceeding.
In Bottomly v. Meagher County, supra, this court, speaking of Chapter 104, laws of 1939, said: “Each Act disqualifies certain heirs, but neither substitutes others, nor leaves the property to devolve to other heirs of the same or more remote degree. Each couples the disqualification with the diversion of the shares for public use; it not only disqualifies the heir in question but takes the estate or his interest in it out of the succession Acts entirely.
“ * * * The legislature has power to provide for escheats, solely because it represents the sovereignty of the state and is dealing with the state’s rights to the reversion of property not permitted under the statutes to go to heirs * * *. Escheat constitutes an obstruction in the course of descent and is an attribute of sovereignty. * * *
“The effect of section 2 [R. C. M. 1947, sec. 91-520] and the first sentence of section 3 [R. C. M. 1947, see. 91-521] is absolutely to deprive the designated aliens of the distributive interests which would otherwise have vested in them. * * *
“As for alien heirs, since their rights depend upon the existence of the reciprocal permission required of their country by section 2 of Chapter 104 [see. 91-520, supra], the burden is clearly upon them to prove its existence. * * * (Emphasis supplied.)
Section 2 of Chapter 104 constitutes substantive law. Bottomly v. Meagher County, supra.
*64This court said in In re Nossen’s Estate, 118 Mont. 40, 162 Pac. (2d) 216, 217: “That it was the intent of the legislature to change the conditions under which rights might vest under the circumstances stated in section 2 of Chapter 104 [sec. 91-520, supra], is shown by section 3 [91-521, supra], which specified the procedure to be followed ‘in any estate where money or property would have vested in any person but for the provisions of Section one’ (two) of the Act.”
In In re Giebler’s Estate, 118 Mont. 44, 162 Pac. (2d) 368, 370, this court said: “It is well to note that until 1939 our statutes provided that certain next of kin of an intestate were his heirs at law, without any reference to their citizenship or place of residence, but that Chapter 104 [Laws of 1939] then made a further requirement with regard to nonresident alien next of kin. Thereafter, upon an intestate’s death, his nonresident alien next of kin did not become his heirs unless the foreign country of their residence reciprocally permitted like rights in estates there to pass to heirs resident in the United States.
‘ ‘# * # It followed that if at intestate’s death his next of kin are entitled to take as heirs under our statutes they immediately become his heirs, and their interests can be divested only by due process of law. On the contrary, if they are not then entitled to take as heirs the property immediately escheats to the state of Montana under the provisions of Chapter 104.” (Emphasis supplied.)
Whether there is or is not reciprocity between the United States of America and the República Populara Romana, being the country of Rumania, would make no difference to appellant Yonica, for if there is proof of reciprocity within the two-year period, the estate would eventually go to such foreign heirs; if proof cannot be made of reciprocity in such an action provided by R. C. M. 1947, sec. 91-509, the estate, less costs of administration, would escheat to the school funds of the State of Montana. Bottomly v. Meagher County, supra; In re Nossen’s Estate, supra; In re Giebler’s Estate, supra.
*65Under our applicable statutes and tbe foregoing decisions of this court, where as here, the undisputed evidence disclosed that Eli Stoian, deceased, left as his next of kin two brothers and a nephew, living, residing, domiciled in, and citizens of a foreign country, to-wit, the Russian-dominated communist country of the People’s Republic of Rumania, the court was correct in so finding. But under R. C. M. 1947, sec. 91-520, and the following statutes, and the above decisions of this court, where as here, no proof of a treaty or law of reciprocity was made, the whole of the estate, less costs of administration, escheats to the public school fund. Montana Constitution, Art. XI, sec. 2. Such foreign next of kin or heirs may within two years bring action to recover the estate by making proof of reciprocity.
The order of the district court should be amended to conform with sections 91-520 et seq., the statutes pertinent thereto, and in conformity to the decisions of this court above noted. Thus the court’s order would escheat the estate to the State of Montana, less the costs of administration, to the public school fund, and the alien next of kin or heirs would have two years thereafter to make proof of reciprocity in the proceedings provided by statute, and not in this proceeding as apparently required by the majority opinion.