320 Mass. 50 | Mass. | 1946
Matilda A. Fricker of Boston died intestate December 21, 1941. On February 3, 1943, administrators of her estate were appointed by the Probate Court of Suffolk County. In a report under date of August 9, 1943, to the alien property custodian the administrators described the persons interested in the estate in the following language: “Emma M. Knapp, . . . Sophia E. Scholl, . . . Jamaica Plain, Mass. Both claim to be first cousins of the deceased and it is claimed that Wilhelm Frederick Karcher (address unknown) of Germany is a first cousin. The cousins are apparently the nearest next of kin, and dependent upon who is adjudged to be the nearest next of kin depends their interest in the estate.” The report stated that “the estate will simply be held until it is determined who are the heirs at law and next of kin and . . . thereon will depend . . . the disposition of the property of the; deceased.” On August 23, 1944, George J. Knapp, executor of the will of Emma M. Knapp, filed a petition for distribution in the Probate Court of Suffolk County, alleging the next of kin to be two first cousins, Emma M. Knapp, deceased, and Sophie E. Scholl. On March 23, 1945, Charles J. Kalinauskas, Esquire, and Dennis E. Sullivan, Esquire, attorneys designated “by the alien property custodian to appear for and represent Wilhelm Frederick Karcher,
1. The motion to dismiss the appeals must be denied. In substance they are appeals in the right of Wilhelm Frederick Karcher and not in the right of the attorney designated by the alien property custodian to represent him. The attorney as such could not be a person aggrieved under G. L. (Ter. Ed.) c. 215, § 9. To attribute to him the expression of an intent to appeal personally in a matter in which he had no individual interest rather than to appeal on behalf of the German national he was authorized to represent would be to give too literal an effect to the language of the claims of appeals. See Mclnnes v. Spillane, 282 Mass. 514, 515-516. We regard as inapplicable the cases of Boston & Albany Railroad v. Commonwealth, 157 Mass. 68, 70, and Madden v. Madden, 279 Mass. 417, 424.
It is objected that Wilhelm Frederick Karcher is not known to have been alive on December 21, 1941, when Matilda A. Fricker died. No report of material facts was made by the judge. We examine the reported testimony under the applicable rule. Lowell Bar Association v. Loeb, 315 Mass. 176, 178. New England Trust Co. v. Commissioner of Corporations & Taxation, 315 Mass. 639, 643-644. Swinford v. Welch, 316 Mass. 112, 117.
It is also contended that the relationship to the intestate-of Wilhelm Frederick Karcher does not appear and that he was not a person aggrieved by the decrees. We do not regard as fatal the reference to him as “supposed to be a
There is nothing in the contention that the denial of the motion to continue was a matter of discretion and for that reason not the subject of appeal. “It is true that in general whether a case when reached for trial shall be heard or continued for hearing at a later time rests in sound judicial discretion, Morgan v. Steele, 242 Mass. 217, 218, and commonly the granting of a continuance is for the presiding judge alone. Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5, 16, and cases cited.” Tierney v. Coolidge, 308 Mass. 255, 261. See Odde v. Field, 297 Mass. 167, 172. Such judicial discretion is, however, subject to review on appeal.
2. A motion to change the caption of the record by striking out “Alien Property Custodian, Appellant”, and substituting “Wilhelm Frederick Karcher, Appellant” is denied. The proper caption of this case appears at the beginning of this opinion.
3. Further considering the denial on March 23, 1945, of the motion to continue, we take notice of the facts that on that date a state of war existed between Germany and this nation; that hostilities did not cease until May 7, 1945;
The appearance for the appellant in the case at bar was filed in the following form: "Pursuant to the authority vested in the alien property custodian by the trading with the enemy act, as amended, and executive order 9095, as amended, and by virtue of a designation by the alien property custodian, attached hereto and made a part hereof, the undersigned appear for and on behalf of Wilhelm Frederick Karcher, a person within a designated enemy country. Dennis E. Sullivan. Charles J. Kalinauskas Office of: Alien Property Custodian.” The designation read: "Pursuant to the authority vested in the alien property custodian by the trading with the enemy act as amended, and executive order 9095 as amended, you are hereby designated, appointed and empowered to appear for and represent Wilhelm Frederick Karcher, a person within a designated enemy country, in the matter of the estate of Matilda Fricker, deceased, a case now pending in the Probate Court, County of Suffolk, Commonwealth of Massachusetts, and to take such measures in connection with representing such person as may from time to time be determined by me or by my duly authorized representative. For the alien property custodian. Thomas H. Creighton, Jr. assistant to the alien property custodian.”
The trading with the enemy act (40 U. S. Sts. at Large, 411-426) approved October 6, 1917, early in the first World War, provided for the appointment by the President of an alien property custodian with certain powers with respect to property in this country of enemy nationals. That act “is strictly a war measure and finds its sanction in the constitutional provision, Art. I, § 8, cl. 11, empowering Congress ‘to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.’” Stoehr v. Wallace, 255 U. S. 239, 241-242. In re Miller, 281 Fed. 764 (C. C. A. 2). The first war powers
In view of the foregoing we are of opinion that the probate judge could not in his discretion deny the motion to continue, but should have granted the. motion. His ruling was in the circumstances a denial of a reasonable opportunity for presentation of the facts essential to showing the interest of Wilhelm Frederick Karcher in the estate of Matilda A. Fricker. It was not fair to a claimant resident in a nation with which we were at war, and gave insufficient regard to the powers conferred by Congress upon the President and by him properly delegated to the alien property custodian. In Watts, Watts & Go. Ltd. v. Unione Austriaca di Navigazione, 248 U. S. 9, 22, it was said, “The respondent, although an alien enemy, is, of course, entitled to defend before a judgment should be entered. ... It is now represented by counsel. But intercourse is prohibited by law between subjects of Austria-Hungary outside the United States and persons in the United States. Trading with the Enemy Act of October 6, 1917, § 3 (c), c. 106, 40 Stat. 411. And we take notice of the fact that free intercourse between residents of the two countries has been also physically impossible. . . . We cannot say that, for the proper conduct of the defense, consultation between client and counsel and intercourse between their respective countries may not be essential even at this stage. The war precludes this.” In The Kaiser Wilhelm II, 246 Fed. 786 (C. C. A. 3), it was said, at page 790, that “the fact that our country is now at war with Germany
The interlocutory decree denying the motion to continue is reversed. The final decree for distribution made after a hearing which should not have been held must also be reversed. The case is remanded to the Probate Court, and an order is to be entered continuing the proceeding for such time as may be reasonably necessary to allow the alien property custodian to endeavor to ascertain the whereabouts of the enemy national Karcher and his present status.
So ordered.