200 P. 412 | Cal. | 1921
This is an appeal from a part of the decree of final distribution in the matter of the estate of C. Bosse, deceased, which was given and made May 7, 1920. By this decree Mary Bosse, mother and sole heir at law of the deceased, a resident of Bremen, Germany, and a public corporation named the Reichsausschuss der Kriegsbeschaedigten-und Kriegshinterbliebenenfuersorge, organized for the purpose of dispensing funds for war sufferers and having its principal place of business at Berlin, Germany, were adjudged to be entitled to the whole of the residue of the estate, consisting entirely of personal property, the respective interests being fully defined and specified, subject to the rights of Francis P. Garvan, as alien property custodian, under and by virtue of the terms of an act of Congress known as the Trading With the Enemy Act, approved October 6, 1917 (
"And it is further ordered, adjudged and decreed that all the money and property to which the said Marie Bosse, and the said" public corporation "are entitled under the terms of this decree, be, and the same are hereby distributed to the said Francis P. Garvan as such Alien Property Custodian, to be held, administered, and accounted for by said Alien Property Custodian as provided by law and as provided for by this decree defining the interests of the said Marie Bosse and the said" public corporation "therein; and that the said executor be and he is hereby ordered and directed to deliver to said Alien Property Custodian, the estate so distributed." It is claimed that this portion of the decree was unauthorized. The record on appeal brought here by appellant consists solely of the decree and the notice of appeal.
[1] We must consider the points made by appellant in the light of the statutory provisions that orders and decrees made by the court in probate proceedings "need not recite the existence of facts, or the performance of acts, upon which the jurisdiction of the court or judge may depend, but it shall only be necessary that they contain the matters ordered or adjudged, except as otherwise provided" (Code Civ. Proc., sec. 1704), and of the rule that every intendment is in favor of the decree. It must now be taken as settled, in view of the decisions of the United States supreme court (seeHamilton v. Kentucky Distilling Co.,
The enemy alien character of appellant is apparent on the face of the decree. [3] Upon the record, in view of the fact that every intendment is in favor of the decree, it must be presumed that the alien property custodian, who, the decree shows, was represented by counsel when distribution was ordered, had regularly appeared in the proceeding and made amy or all demands and given all the notice essential under the Trading With the Enemy Act in the manner provided by the act.
We have seen that the decree as given fully adjudicated and defined the right of appellant with regard to the property to which it was entitled, subject to the rights of the alien property custodian under the Trading With the Enemy Act, with the result that in any subsequent proceeding on the part of appellant for accounting and delivery of the property, appellant's rights as absolute owner, subject only to the provisions of the act, stand judicially declared. As to this no complaint is made. [4] The claim of error is solely as to the subsequent portion of the decree which "distributes" such property to which appellant is so entitled to such alien property custodian to be held, administered, and accounted for by him as provided by law and as provided by the decree defining appellant's interest. It appears plain to us that this portion of the decree is in substantial accord with the requirements of that act and the proclamation of the President thereunder. The act provides, section 6, for an alien property custodian "who shall be empowered to receive all money and property in the United States due or belonging to an enemy . . . , which may be paid, conveyed, transferred, assigned or delivered to said custodian under" its provisions. By section 7, subdivision c, it is provided that "if the President shall so require," any money or property belonging to *670
or held for an enemy not holding a license granted by the President under the act, "shall be conveyed, transferred, assigned, delivered or paid over to such custodian, or may be seized by him, to be held, administered and disposed, of as provided in the act." By section 12 it is provided that all moneys received by such custodian shall be deposited in the treasury of the United States, and that all other property so received shall be held and administered by him as a common law trustee; and that after the end of the war any claim of an enemy to any money or property so received and held shall be settled as Congress may direct. By executive order of October 12, 1917, the President vested in the alien property custodian the executive administration of all the provisions of section 7, subdivision c, including the power and authority conferred upon him to require the conveyance, transfer, assignment, etc., of any money or property belonging to or held for any enemy. By executive order of February 26, 1918, it was provided that such custodian might make demand for any such conveyance, etc., and that when such demand is made and notice given as provided, "such demand and notice shall forthwith vest in the Alien Property Custodian such right, title, interest, and estate in and to and possession of the money or other property demanded, and such power or authority thereover as may be included within the demand." The plain effect of these provisions was to require the superior court in any distribution of appellant's interest that it might make, to assign the same to the alien property custodian, in view of the demand made and notice given, which we must assume, to be held and accounted for by him as provided in the act, properly guarding in the decree all the right of the appellant in relation thereto. This appears to be recognized by all the authorities to which our attention has been called. (See In re Kelly,
[5] We are of the opinion that there is no substantial force in the claim that, in view of our statute, the superior court was without power to incorporate this provision in its decree. The contention to the contrary is based upon the theory as to the limited function of superior courts in probate matters, under our state statutes. It is claimed that thereunder the court on distribution is limited to an ascertainment of the heirs, legatees, and devisees, and a distribution to them, or to other persons to whom such heirs, legatees, or devisees may have conveyed their interests. The provision is, in substance, but a recognition of the interest of the representative of the government in the property under the terms of the Trading With the Enemy Act, which interest gives to him the right of possession for the purposes of the act, accompanied by a direction that such possession be given. The objection of appellant is based upon the theory of a special and limited jurisdiction vested by our state law in superior courts in the transaction of probate business. The provision complained of is in substance but an award of the possession of the property otherwise adjudged by the court to belong to the appellant to the proper representative of the government for the purposes of the Trading With the Enemy Act, and, in our opinion, was such a provision as the court was required by such act to make if it undertook to then finally distribute the property of the estate. Any distribution which did not guard the interest of the United States in the matter would be in substantial violation of the provisions of that act. (See Estate ofHenrichs,
The decree is affirmed.
Shaw, J., Olney, J., Wilbur, J., Sloane, J., Lennon, J., and Lawlor, J., concurred.