288 F. 760 | 2d Cir. | 1923
This is an appeal from an order entered in the District Court for the Southern District of New York on November 10, 1922, which adjudged and decreed that Gustav Schwab and William Siegel, executors of the estate of Herman C. Von Post, deceased, pay and deliver to Thomas W. Miller, as Alien Property Custodian of the United States, the sum of $14,064.08, due and owing to the persons named in the said order, in the amounts set opposite their respective names, with the interest accrued thereon, in compliance with the demands which the Custodian issued and served upon the executors in accordance with the provisions of the act of Congress known as the Trading with the Enemy Act.
The Act approved October 6, 1917 (40 Stat. pt. 1, c. 106, p. 415 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115%cc]), provided for the transfer or delivery to the Alien Property Custodian of property held for or on account of an alien enemy if the President so required; and by an act approved on November 4, 1918, the act of 1917 was amended, and express provision was made giving to the Custodian the right to seize property which the President had determined belonged to an alien enemy and had required to be paid over (40 Stat. pt. 1, c. 201, p. 1020 [Comp. St. Ann. Supp. 1919, § 31151/2d]).
It appears that on October 10, 1913, Herman C. Von Post died while a resident of the city, county, and state of New York, and left a will which was duly admitted to probate in the Surrogate’s Court for New York County on January 15, 1914. Letters testamentary under the will were duly issued to Gustav Schwab and William Siegel, each of whom resides in the city of New York. The executors entered upon the administration of the estate, and on February 10, 1921, filed an account in the Surrogate’s Court, setting out their acts as executors up to January 3, 1921, which was settled by a decree of that court dated June 27, 1921. "The seventh and eighth paragraphs of the will read as follows:
“Seventh. I give and bequeath to the same persons as are made my residuary legatees in the next succeeding clause of this my will, in the proportions, therein specified, whatever sum of money may be due me from the firm of Oelriehs & Company at my death, as a copartner in said firm or otherwise, subject however to the right of said firm, or of any firm succeeding to its business in which my said nephew Gustav H. Schwab or his son Gustav Schwab, Jr., or either of the nephews of said Gustav H. Schwab is a partner, to retain said sum for a period of two years from the date of my decease, paying .interest thereon to my said legatees at the rate of five per centum per annum, at the end of which period I direct said firm to pay over one-half of said sum to my said legatees; and subject further, to the right of said firm, or such succeeding firm with, the approval of my executors, to be given within two years from the date of my decease, to retain at its option the remaining one-half of said sum for a further definite period not exceeding eight years, paying interest thereon to my said legatees at the rate above specified, at the end of which period, or at the end of said' period of two years from my decease if my executors shall not by that time have given their approval as aforesaid, I direct said firm to pay over said remaining one-half to my said legatees; the said firm or succeeding firm to have the right, however, at its option at any time after my death, to pay off and discharge the whole or any part of said indebtedness ; and subject further, and X hereby direct, that my executors shall determine the amount due me at my death from said firm, and that their determination shall be final and conclusive upon my said legatees and all per*763 sons interested in my estate, without any right on the part of said legatees or persons to examine into the hooks or records of said firm or such succeeding firm or to require any statement from either of said firms in regard to its business or affairs, or any statement from my executors other than a memorandum of the amount so due as determined by them.
“Eighth. All the rest, residue and remainder of my property and estate, real and personal, and wherever situated, which at the time of my decease I may be seized or possessed! of, or in or to which I may then have any right, title or estate or interest, including the one-third of the net proceeds of the house and lot in Eifty-Seventh street, referred to in a preceding clause of this my will, I direct to be divided by my executors into as many equal shares or parts as shall be equal to the number of nephews and nieces who shall survive me, and who shall have died before me leaving lineal descendants who shall survive me, these nephews and nieces being the children of my deceased sisters, Catherine Elizabeth Schwab, late of New York City, Henrietta Margareta Schwab, late of the city of Stuttgart, Germany, Clementine Schrader, late of the city of Bielefeld, Germany, and Emily Maria Pauli, late of the city of Bremen, Germany; and I give, devise and bequeath one of said shares to each of said nephews and nieces who shall survive me and one of said shares to the lineal descendants collectively who may survive me of each of said nephews and nieces who may have died before me, such descendants in each case to take equally,, per stirpes and not per capita.”
The amount due the decedent representing his share as a partner in the firm of Oelrichs & Co. at the time of his death was found to be $1,286,607.03. Under the" seventh paragraph of the will above set forth the firm of Oelrichs & Co. was entitled to retain the whole of said sum for a period of two years from the decedent’s death, to wit, until October 10, 1915, paying 5 per cent, interest thereon. Prior to that time, however, and by July 14, 1915, the firm had paid to the executors the sum of- $645,807.03, leaving a balance due of $640,800, which balance the firm at that time, with the approval of the executors and in accordance with the terms of the will, elected to retain for the further period of eight years and until October 10, 1923. And since July 14, 1915, the firm has paid to the executors on the said sum of $640,800 interest semiannually at the rate of 5 per cent, per annum on the 1st days of January and July of each year.
On January 18, 1918, the executors filed with the Alien Property Custodian a report as required by the Trading with the Enemy Act, wherein they reported the names and addresses of the persons listed in the margin,
Thereafter, on June 26, 1919, the Custodian determined that the-following additional persons, listed also in the margin,
- However, on January 1, 1922, the executors reported to the Custodian that they had received from Oelrichs & Co. the sum of $16,020.-20, representing a semiannual payment of interest from July 1 to-December 31, 1921, on the $640,800 retained by that firm. The executors further reported that out of said installment of interest, after deducting commissions and expenses, the sum of $7,032.04 was due to the said enemies. This amount the executors refused to pay over to-the Custodian for reasons hereinafter referred to. And on July 1, 1922, the executors reported to the Custodian that they had received from Oelrichs & Co. a further sum of $16,020, representing the semiannual payment of interest due from January 1 to June 30, 1922, on the amount retained by the firm”. The' executors further reported that out of said installment of interest, after deducting commissions and expenses, the sum of $7,032.04 was due to the said enemies whose interests had been demanded by the Custodian as already set forth. The-executors have also refused to pay this amount over to the Custodian.
Because of these refusals of the executors to pay over these amounts-of money, which they admit having in their hands, the Custodian filed his petition in the District Court, and prayed that court to enter such orders and issue such process as might be necessary to compel the executors to turn over such property to him in accordance with the Trading with the Enemy Act. The District Court having entered the
The Joint Resolution of Congress, which became effective on July 2, 1921 (42 Stat. 105), declared:
“That the state of war declared to exist between the Imperial German government and the United States of America by the joint resolution of Congress approved April 6, 1917, is hereby declared at an end.”
The executors had paid over to the Custodian all interest received by them for the alien enemies up to and including the 1st day of July, 1921, but have withheld all interest which has reached their hands since that time, viz. on January 1, 1922, and on July 1, 1922.
The contention of the Custodian is that by the demands he served on the executors on November 30, 1918, and on July 8, 1919, he effectually seized interest not then in the hands of the executors, and which did not accrue or become due until after the adoption of the Joint Resolution of July 2, 1921; and this contention the executors deny and they assert that the Trading with the Enemy Act has no application to debts which matured subsequent to July 2, 1922, or to installments of interest on such debts which accrued subsequent to said date.
This raises a very interesting and important question, and so far as we are aware one upon which there is an entire absence of authority. While the District Court has sustained the contention of the Custodian, no opinion was filed. But, although the facts presented in this case are different from those of any other which has come to Our attention, the principle which is applicable and the answer which must be given to the question raised are, as it seems to us, not involved in uncertainty.
The Surrogate’s Court Act, of New York (Eaws 1920, c. 928), § 202, requires that in that state all the personal property of an estate, including debts, must pass to the executors or administrators and be ad
This brings us to a consideration of the demands made by the Custodian upon the executors. These demands, we have seen, were made in November, 1918, and July, 1919. Each of the demands after stating that it had been determined that the person named therein was an enemy (not holding a license granted by the President) and that he had a certain right, title, and interest in and to the estate of Herman C. Von Post, deceased, continued as follows:
“I, as Alien Property Custodian, hereby require that every right, title, and interest of said enemy in and to the estate above described, including every power and authority thereover, shall be by you conveyed, transferred, assigned,’ delivered, and paid over to me as Alien Property Custodian, to be by me held, administered, and accounted for as provided by law, and that any money or property now or hereafter held by you which the enemy may at any time or times, now or hereafter, be entitled to receive either upon or without demand, shall at such time or times be conveyed, transferred, assigned, delivered, and paid over to me, as Alien Property Custodian.”
“All property * * * of all German, nationals which was, on April 6, 1917, in or bas since tbat date come into tbe possession or under control of, or has been the subject of a demand by the United States of America or of any of its officers, agents, or emplayees, from any source or by any agency whatever, * * * shall be retained by the United States of America and no disposition thereof made, excepts as shall have been heretofore or specifically hereafter shall be provided by law. * * * ”
And no provision by law subsequently made, which affects the question now before the court, has been brought to our attention.
Moreover, we may call attention to the fact that this resolution of
‘‘Germany undertakes to accord to the United States, and the United States sháll have and enjoy all the rights, privileges, indemnities, reparations or advantages specified in the aforesaid Joint Resolution of the Congress of the United States of July 2, 1921.”
The order is affirmed.
“(1) Estate of Anna S. E. Lachmann (deceased legatee), care of Wilbelm H. Schrader, 28 Wachmann Strasse, Bremen, Germany; (2) estate of Ludwig Schwab (deceased legatee), 36 Azenberg Strasse, Stuttgart, Germany; Gustav F. Schwab, Karl G. Schwab, Hermann C. Schwab, Estate of Richard Schwab, 36 Azenberg Strasse, Stuttgart, Germany; Emilie H. Weitbrecht, 61 Lenzhalde Strasse, Stuttgart, Germany; (3) Theodore H, Plieninger, Elizabeth M. Plieninger, Hanna O. Plieninger, 1 Johannes Strasse, Stuttgart, Germany; (4) Rudolf F. A. Schrader, Goethe Strasse, Johannistal, Bielefeld, Germany; Emily M. Seiler, & Mozart Strasse, Bielefeld, Germany; Gustav B. Schrader, Herman Strasse, Bielefeld, Germany; Wilhelm H. Schrader, 28 Wachmann Strasse, Bremen, Germany; Friedrich Paul Schrader, Kiel, Germany; Sophie H. Noltenius, 55 Kolhoeker Strasse, Bremen, Germany; Clementine S. C. Kulenkampff, 19 Kolhoeker Strasse, Bremen, Germany; Estate of A. S. Elizabeth Goessling (deceased legatee); Brackwade, Germany.”
“Gustav F. Schwab, Karl G. Schwab, Hermann C. Schwab, Emilie H. Weitbrecht, Theodore .H. Plieninger, Elizabeth M. Plieninger, Hanna O.Plieninger, Rudolf F. A. Schrader, Emily M. Seiler, Gustav B. Schrader, Wilhelm H. Schrader, Friedrich Paul Schrader, Sophie H. Noltenius, and' Clementine S. C. Kulenkampff.”
“The heirs at law next of kin and legatees (names unknown), residing in Germany, of Anna S. E. Lachmann, deceased; the heirs at law next of kin and legatees (names unknown) of Ludwig Schwab, deceased; the heirs ■ at law and next of kin and legatees of Richard Schwab, deceased, and. the heirs at law next of. kin and legatees of A. S. Elizabeth Goessling, deceased.”