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Appeal
and Determination on it to suit
recognition of ownership of the estate.

Judge Diordieva ON

DEFINITION

 

Case 33-7461

April 2, 2009

Judicial board on civil cases of the Moscow City Court, composed of the presiding Oganov EY Judges Vishnyakova NE, Dednevoy LV

Heard in open court on the report of Judge Vishnyakova NE case on appeal Ryzhkov EP Nikulinskaya decision of the district court in Moscow on December 24, 2008, which decreed: Claims to satisfy in part.

Recognize the St. Thomas Lyudmila Ivanovna ownership through inheritance by law after the death of a spouse Fomin Vladimir Ilyich, who died June 2, 2006, at 5\8 (five eighths) of shares:

Apartment 42 house 3 str. Matveevskoy Moscow.

5\8 (five eighths) shares of the land area of 600 square meters. m and cadastral number 50: 24: 005 June 1951: 0050 and the garden house with a total area of 34.1 square meters. m, inventory number 191:060-9495\991, located at the address: Moscow region, Orekhovo-Zuevsky area Vereiskaya rural settlement, SNT "Union", a house 991.

Recognize the Ryzhkov Yevgeniya Petrovna ownership through inheritance by law after the death of Fomin Ilya Vasilyevich, who died March 28, 2004 3\8 (three-eighths) shares:

Apartment 42 house 3 str. Matveevskoy Moscow. * 3\8 (three-eighths) shares of the land area of 600 square meters. m cadastral number 50: 24: 005 June 1951: 0050 and the garden house with a total area of 34.1 square meters. m conditioned room 191:060-9495\991, located at the address: Moscow region, Orekhovo-Zuevsky area Vereiskaya rural settlement, SNT "Union", a house 991.

Solution is the basis for changes in the Unified State Register of rights to immovable property and transactions with them.

Apartment 42 house 3 str. Matveevskaya Moscow consists of one room measuring 19.0 square meters. m, total area of 34.7 square meters. m

 

Install:

May 30, 1997 revealed an inheritance after the death of St. Thomas Talidy Vasilievna, who resided on the day of death to the address: Moscow, ul. Matveevskaya, Building 3 apartment 42, with her husband Ilya Fomin Library. Spouses Fomin married since 1956. Have the right of ownership land with the house, at the address: Moscow region, Orekhovo-Zuevsky area Vereiskaya rural graying SNT Soyuz house 991 (right to property is decorated in the name of St. Thomas) and a flat, privatized spouses in common joint ownership of 42 houses 3 to st. Matveevskaya Moscow. Probate case the property of St. Thomas TV not revealed.

March 28, 2004 revealed an inheritance after the death of Fomin Ilya Vasilyevich, who lived at the address: Moscow, Matveevskaya, Building 3 apartment 42, on the day of the death of his wife Ryzhkov, HE A statement of acceptance of the inheritance to the notary Guseva LS asked Fomin Vladimir Ilyich - a son and Ryzhkov Eugene P. - wife.

Notary certificate of inheritance is not issued.

June 2, 2006 opened the inheritance on the death of Vladimir Ilyich Fomina, who lived at the address: Moscow, ul. Lebedyanskaya D., 32, Apt. 370. A statement to the notary public on the adoption of the deceased husband's estate appealed, Lyudmila Fomina. Other heirs of the sons: Sergey Fomin and Fomin, Dmitry, a statement of acceptance of the inheritance his father not been accessed live at the address: Moscow street. Ozernaya house 19 k. 2 square. 75 (ie not with the testator). Notary certificate of inheritance is not issued.

Fomina LI appealed to a court to determine that the estate after the death of her husband, consists of:

1. Apartment 42 house 3 str. Matveevskoy Moscow

2. land area of 600 square meters. m, the cadastral number 50: 24: 005 June 1951: 0050

3. garden house with a total area of 34.1 square meters, inventory number 191:060-9495\991

-Located at the address: Moscow region, Orekhovo-Zuevsky district Vereiskaya rural settlement, SNT "Union", a house 991. He asks the court to recognize a property right in the order of succession to the property. The claims are motivated by the fact that her husband Fomin VI has inherited the mother actually applied for a notary public after the death of his father. The claims are based on art. 1152, 1153 Civil Code.

Ryzhkov Evgenia Petrovna, the wife of the deceased Fomina Ilya Vasilyevich (married to August 2, 2001) filed a separate claim and requested the court to recognize the right of property ownership: 1. apartment 42 house 3 str. Matveevskoy Moscow

Land area of 600 square meters. m, the cadastral number 50: 24: 005 June 1951: 0050

Garden house with total area of 34.1 square meters. m, inventory number 191:060-9495\991 located at the address: Moscow region, Orekhovo-Zuevsky district Vereiskaya rural settlement, SNT "Union", a house 991.

Claims are motivated by the fact that the evidence that the son of Vladimir Fomin received an inheritance after the death of the mother is not available. IQ that Fomin VI applied for a notary public after his death, there is a hereditary cause. Fomin VI Succession in time is not accepted, and during the life of a statement on the restoration time of acceptance of inheritance is not addressed. Claimant Fomina the statement for relief not filed. Therefore Ryzhkov EP is the sole heir under the law of this inheritance. She asked the court to recognize a "right to property after the death of her husband on his property. The claims are based on art. 1153 Civil Code.

In court, the representative of St. Thomas LI claims its doveritelnitsy fully supported. Claims Ryzhkov EP not guilty.

Representative Ryzhkov, HE claim of a third person has supported the claim Fomina LI not guilty.

Representative of the defendant IFTS 1929 Moscow and the representative of the defendant JP and LP Moscow in court were "informed. Representatives of third parties in the court failed to appear informed.

Court resolved the above decision, the abolition of which is unlawful, in their appeal requests Ryzhkov, HE

Checked the case file, listening to explanations of the representatives of the parties, Stepanov AV, Maslyukov KV, discussing the arguments of the appeal, the panel of judges finds that there are no grounds for setting aside the contested decision, ruling in accordance with actual circumstances of the case and the requirements of Art. Art. 131, 209, 218, 244, 245, 256, 1100-1115, 1141, 1142, 1150, 1152, 1153, 1154, 1162, 1163, 1168 of the Civil Code, Art. 527-546 of the Civil Code of the RSFSR, Art. Art. 1, 2, 5 of the RF Law "On Enactment of the third part of the Civil Code,

In accordance with art. 527 Civil Code of the RSFSR - legal succession takes place, when and as it does not change his will,

In accordance with art. 546 Civil Code of the RSFSR (acting on the opening day of the inheritance after the death of St. Thomas TV) - to acquire the inheritance heir must accept it. Not allowed adoption of the inheritance on the condition or with reservations. It is recognized that the heir has inherited when he actually took possession of estates or when he filed a notary organ of the place of opening the inheritance declaration of acceptance of the inheritance.

Meet the basic action and some action Ryzhkov EP, the court proceeded from the fact that Fomin VI and IV Fomin actually took possession of estates after the death of his mother and wife - St. Thomas TV, as Fomin, IV resided in the disputed apartment, and VI Fomin carrying costs of maintaining the estate and owned and used it, which should be interrogated from the testimony of a witness in the trial Matyukhin TN As well as written evidence, a receipt for pay 25 October 1997 (ie within six months from the date of opening of the inheritance) to account for the name of St. Thomas TV 100.000 rubles to the account Horticultural Association "Union", located in Orekhovo-, Moscow region. Accordingly, Fomin VI became the property of 1/4 share flats and 1/4 share of land and houses. After the death of Ilya Vasilyevich Fomin, Fomin, Vladimir Ilyich, as the son turned to the notary public, a statement of acceptance of inheritance within six months to September 18, 2004 (p. 47). Ryzhkov EP filed a statement of acceptance of the inheritance after the death of her husband on May 12 2004goda (p. 48). Both pointed to each other heirs, and both indicated as the estate apartment only 42 houses on the street 3. Matveevskoy Moscow. Ryzhkov EP lived with the testator ever, at the apartment at issue in 42 3 to st. Matveevskoy Moscow. In such circumstances, the arguments Ryzhkov, that there is no data on the adoption of the inheritance of the deceased's son, do not correspond to reality. Therefore, inherited after the death of Fomin IV be divided between two heirs in equal shares Ryzhkov EP and VI Fomin (Property is not married to Ryzhova EP). Accordingly, 1/2 share and 1/4 percentage Fomina Ilya Vladimirovich in property in the form of flats and land with it is not located cottages (1/2 percentage Fomina initially by law; 1/4 by inheritance after the death of St. Thomas TV ) to be divided between his son and wife of the testator in equal shares. Therefore, Fomin VI by right of inheritance after the death of his father passed 3\8 (half of 1\2 1\4 + half of the 1\4 = 1\8). Ryzhkov EP as heir after the death of her husband passed 3\8 (1/4 + 1\8). Since Fomin VI inherit property the mother, that is, after her death, acquired the right to 1/4 share of the property, the share of Fomin VI definitely a 5\8 (3\8 after his father's death + 1/4 after the death of the mother) in the hereditary property after the death of both parents. Since, Fomin, VI during her lifetime, managed to pass the inheritance of parents, it belonged to him on the day of his death, no matter what title to his name has been registered with life (Part 4 of Article 1152 Civil Code). The plaintiff in this case Fomina LI as the heir of the testator Fomin VI, entitled to claim a property belonging to her husband acquired their rightful inheritance by law after the death of the mother and father. In this connection, and set out the court found for Fomina LI ownership of a 5\8 share of the property, and for Ryzhkov EP - 3\5 shares of the estate.

The appeal Ryzhkov EP indicates that the court incorrectly evaluated the evidence establishing the acceptance of inheritance, namely the receipt from 25.10.1997, the do not indicate exactly who made the payment and for any house.

However, this argument can not justify a reversal of a judicial decision, because Ryzhkov is not submitted evidence to substantiate the fact that St. Thomas T. Were there any other areas in the CHT "Union", because Payment is made on its behalf and on receipt SNT Soyuz.

The fact that the court did not postpone the trial after the presentation Ryzhkov EP independent claims in the matter in dispute, a formal violation. However, most human Ryzhkov, HE it does not violate, because She was a participant in the process of initially stated requirements Fomina LI, had the opportunity to become acquainted with the case, petitions, submit evidence, as well as claims on the matter in dispute, that it was done in the trial 214 in December 2088 when this , its representative any request to postpone the trial, the additional evidence sought is not stated. Not on any new evidence does not refer Ryzhkov EP in the appeal. Plaintiff's arguments on the actual acceptance of the inheritance her husband, Fomin, VI -After my mother died, St. Thomas TV -It does not refuted.

In reaching its decision, the court correctly identified the legally relevant circumstances. The established facts are confirmed by the court case file and investigated by the court evidence which the court gave a proper assessment. The findings of the court within the stated circumstances. Violations of procedural and substantive law, entailing the abolition of the solutions in this part, the court had been committed. Based on the above, following the article. 360, 361 ZPO Russia, the panel of judges,

 

Define:

Decision Nikulinskaya district court in Moscow on December 24, 2008 remain unchanged, the appeal - without satisfaction.

 

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