Copyright (c) West Group 2000 No claim to original U.S. Govt. works 50 App.

USCA 7, Lists of enemy or ally of enemy officers, directors or stockholders of corporations in United States; acts constituting trade with enemy prior to passage of Act; conveyance of property to custodian; voluntary payment to custodian by *161550 50 App. U.S.C.A. § 7 UNITED STATES CODE ANNOTATED TITLE 50 APPENDIX. WAR AND NATIONAL DEFENSE TRADING WITH THE ENEMY ACT OF 1917 ACT OCT. 6, 1917, C. 106, 40 STAT. 411 Current through P.L. 106-259, approved 8-9-2000 § 7. Lists of enemy or ally of enemy officers, directors or stockholders of corporations in United States; acts constituting trade with enemy prior to passage of Act; conveyance of property to custodian; voluntary payment to custodian by holder; acts under order, rule, or regulation (a) Every corporation incorporated within the United States, and every unincorporated association, or company, or trustee, or trustees within the United States, issuing shares or certificates representing beneficial interests, shall, under such rules and regulations as the President may prescribe and, within sixty days after the passage of this Act [Oct. 6, 1917] and at such other times thereafter as the President may require, transmit to the alien property custodian a full list, duly sworn to, of every officer, director, or stockholder known to be, or whom the representative of such corporation, association, company, or trustee has reasonable cause to believe to be an enemy or ally of enemy resident within the territory, or a subject or citizen residing outside of the United States, of any nation with which the United

States is at war, or resident within the territory, or a subject or citizen residing outside of the United States, of any ally of any nation with which the United States is at war, together with the amount of stock or shares owned by each such officer, director, or stockholder, or in which he has any interest. The President may also require a similar list to be transmitted of all stock or shares owned on February third, nineteen hundred and seventeen, by any person now defined as an enemy or ally of enemy, or in which any such person had any interest; and he may also require a list to be transmitted of all cases in which said corporation, association, company, or trustee has reasonable cause to believe that the stock or shares on February third, nineteen hundred and seventeen, were owned or are owned by such enemy or ally of enemy, though standing on the books in the name of another: Provided, however, That the name of any such officer, director, or stockholder, shall be stricken permanently or temporarily from such list by the alien property custodian when he shall be satisfied that he is not such enemy or ally of enemy. *161551 Any person in the United States who holds or has or shall hold or have custody or control of any property beneficial or otherwise, alone or jointly with others, of, for, or on behalf of an enemy or ally of enemy, or of any person whom he may have reasonable cause to believe to be an enemy or ally of enemy and any person in the United States who is or shall be indebted in any way to an enemy or ally of enemy, or to any person whom he may have reasonable cause to believe to be an enemy or ally of enemy, shall, with such exceptions and under such rules and regulations as the President shall prescribe, and within thirty days after the passage of this Act [Oct. 6, 1917], or within thirty days after such property shall come within his custody or control, or after such debt shall become due, report the fact to the alien-property custodian by written statement under oath containing such particulars as said custodian shall require. The President may also require a similar report of all property so held, of, for, or on behalf of, and of all debts so owed to, any person now defined as an enemy or ally of enemy, on February third, nineteen hundred and seventeen: Provided, That the name of any person shall be stricken from the said report by the alien-property

custodian, either temporarily or permanently, when he shall be satisfied that such person is not an enemy or ally of enemy. The President may extend the time for filing the lists or reports required by this section for an additional period not exceeding ninety days. (b) Nothing in this Act [sections 1 to 6, 7 to 39 and 41 to 44 of this Appendix] contained shall render valid or legal, or be construed to recognize as valid or legal, any act or transaction constituting trade with, to, from, for or on account of, or on behalf or for the benefit of an enemy performed or engaged in since the beginning of the war and prior to the passage of this Act [said sections], or any such act or transaction hereafter performed or engaged in except as authorized hereunder, which would otherwise have been or be void, illegal, or invalid at law. No conveyance, transfer, delivery, payment, or loan of money or other property, in violation of section three hereof [Oct. 6, 1917] endix], made after the passage of this Act [Oct. 6, 1917] and not under license as herein provided shall confer or create any right or remedy in respect thereof; and no person shall by virtue of any assignment, indorsement, or delivery to him of any debt, bill, note, or other obligation or chose in action by, from, or on behalf of, or on account of, or for the benefit of an enemy or ally of enemy have any right or remedy against the debtor, obligor, or other person liable to pay, fulfill, or perform the same unless said assignment, indorsement, or delivery was made prior to the beginning of the war or shall be made under license as herein provided, or unless, if made after the beginning of the war and prior to the date of passage of this Act [Oct. 6, 1917], the person to whom the same was made shall prove lack of knowledge and of reasonable cause to believe on his part that the same was made by, from or on behalf of, or on account of, or for the benefit of an enemy or ally of enemy; and any person who knowingly pays, discharges, or satisfies any such debt, note, bill, or other obligation or chose in action shall, on conviction thereof, be deemed to violate section three hereof [section 3 of this Appendix]: Provided, That nothing in this Act [said sections] contained shall prevent the carrying out, completion, or performance of any contract, agreement, or obligation originally made with or entered into by an enemy or ally of enemy where, prior to the beginning of the war and not in contemplation thereof, the interest of such enemy or ally of enemy

devolved by assignment or otherwise upon a person not an enemy or ally of enemy, and no enemy or ally of enemy will be benefited by such carrying out, completion, or performance otherwise than by release from obligation thereunder. *161552 Nothing in this Act [said sections] shall be deemed to prevent payment of money belonging or owing to an enemy or ally of enemy to a person within the United States not an enemy or ally of enemy, for the benefit of such person or of any other person within the United States, not an enemy or ally of enemy, if the funds so paid shall have been received prior to the beginning of the war and such payments arise out of transactions entered into prior to the beginning of the war, and not in contemplation thereof: Provided, That such payment shall not be made without the license of the President, general or special, as provided in this Act [said sections]. Nothing in this Act [said sections] shall be deemed to authorize the prosecution of any suit or action at law or in equity in any court within the United States by an enemy or ally of enemy prior to the end of the war, except as provided in section ten hereof [section 10 of this Appendix]: Provided, however, That an enemy or ally of enemy licensed to do business under this Act [said sections] may prosecute and maintain any such suit or action so far as the same arises solely out of the business transacted within the United States under such license and so long as such license remains in full force and effect: And provided further, That an enemy or ally of enemy may defend by counsel any suit in equity or action at law which may be brought against him. Receipt of notice from the President to the effect that he has reasonable ground to believe that any person is an enemy or ally of enemy shall be prima facie defense to any one receiving the same, in any suit or action at law or in equity brought or maintained, or to any right or set-off or recoupment asserted by, such person and based on failure to complete or perform since the beginning of the war any contract or other obligation. In any prosecution under section sixteen hereof [section 16 of this Appendix], proof of receipt of notice from the President to the effect that he has reasonable cause to believe that any person is an enemy or ally of enemy shall be prima facie evidence that the person receiving such notice has reasonable cause to believe

such other person to be an enemy or ally of enemy within the meaning of section three hereof [section 3 of this Appendix]. (c) If the President shall so require any money or other property including (but not thereby limiting the generality of the above) patents, copyrights, applications therefor, and rights to apply for the same, trade marks, chooses in action, and rights and claims of every character and description owing or belonging to or held for, by, on account of, or on behalf of, or for the benefit of, an enemy or ally of enemy not holding a license granted by the President hereunder, which the President after investigation shall determine is so owing or so belongs or is so held, shall be conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or the same may be seized by the Alien Property Custodian; and all property thus acquired shall be held, administered and disposed of as elsewhere provided in this Act [sections 1 to 6, 7 to 39 and 41 to 44 of this Appendix]. *161553 Any requirement made pursuant to this Act [said sections], or a duly certified copy thereof, may be filed, registered, or recorded in any office for the filing, registering, or recording of conveyances, transfers, or assignments of any such property or rights as may be covered by such requirement (including the proper office for filing, registering, or recording conveyances, transfers, or assignments of patents, copyrights, trade-marks, or any rights therein or any other rights); and if so filed, registered, or recorded shall impart the same notice and have the same force and effect as a duly executed conveyance, transfer, or assignment to the Alien Property Custodian so filed, registered, or recorded. Whenever any such property shall consist of shares of stock or other beneficial interest in any corporation, association, or company or trust, it shall be the duty of the corporation, association, or company or trustee or trustees issuing such shares or any certificates or other instruments representing the same or any other beneficial interest to cancel upon its, his, or their books all shares of stock or other beneficial interest standing upon its, his, or their books in the name of any person or persons, or held for, on account of, or on behalf of, or for the benefit of any person or persons who shall have been determined by the President, after investigation, to be an enemy or ally

of enemy, and which shall have been required to be conveyed, transferred, assigned, or delivered to the Alien Property Custodian or seized by him, and in lieu thereof to issue certificates or other instruments for such shares or other beneficial interest to the Alien Property Custodian or otherwise, as the Alien Property Custodian shall require. The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or required so to be, or seized by him shall be that provided by the terms of this Act [said sections], and in the event of sale or other disposition of such property by the Alien Property Custodian, shall be limited to and enforced against the net proceeds received therefrom and held by the Alien Property Custodian or by the Treasurer of the United States. (d) If not required to pay, convey, transfer, assign, or deliver under the provisions of subsection (c) of this section, any person not an enemy or ally of enemy who owes to, or holds for, or on account of, or on behalf of, or for the benefit of an enemy or of an ally of enemy not holding a license granted by the President hereunder, any money or other property, or to whom any obligation or form of liability to such enemy or ally of enemy is presented for payment, may, at his option, with the consent of the President, pay, convey, transfer, assign, or deliver to the alien property custodian said money or other property under such rules and regulations as the President shall prescribe. (e) No person shall be held liable in any court for or in respect to anything done or omitted in pursuance of any order, rule, or regulation made by the President under the authority of this Act [sections 1 to 6, 7 to 39 and 41 to 44 of this Appendix]. *161554 Any payment, conveyance, transfer, assignment, or delivery of money or property made to the alien property custodian hereunder shall be a full acquittance and discharge for all purposes of the obligation of the person making the same to the extent of same. The alien property custodian and such other persons as the President may appoint shall have power to execute, acknowledge, and deliver any such instrument or instruments as may be necessary or proper to

evidence upon the record or otherwise such acquittance and discharge, and shall, in case of payment to the alien property custodian of any debt or obligation owed to an enemy or ally of enemy, deliver up any notes, bonds, or other evidences of indebtedness or obligation, or any security therefor in which such enemy or ally of enemy had any right or interest that may have come into the possession of the alien property custodian, with like effect as if he or they, respectively, were duly appointed by the enemy or ally of enemy, creditor, or obligee. The President shall issue to every person so appointed a certificate of the appointment and authority of such person, and such certificate shall be received in evidence in all courts within the United States. Whenever any such certificate of authority shall be offered to any registrar, clerk, or other recording officer, Federal or otherwise, within the United States, such officer shall record the same in like manner as a power of attorney, and such record or a duly certified copy thereof shall be received in evidence in all courts of the United States or other courts within the United States. CREDIT(S) 1990 Main Volume (Oct. 6, 1917, c. 106, § 7, 40 Stat. 416; Nov. 4, 1918, c. 201, § 1, 40 Stat. 1020.) <General Materials (GM) - References, Annotations, or Tables> HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Amendments 1918 Amendment. Subsec. (c). Act Nov. 4, 1918 added provisions on the recording of property transfers, the cancellation of enemy owned stock by corporations, and the restriction of claims to relief provided by the terms of section 1 to 6, 7 to 39 and 41 to 44 of this Appendix.

Transfer of Functions Functions of the Alien Property Custodian and the Office of Alien Property Custodian, except those relating to property or interest in the Philippines, are now vested in the Attorney General. See notes set out under section 6 of this Appendix. World War II Alien Property Custodian Re-establishment and termination of Office of Alien Property Custodian during World War II, see notes under section 6 of this Appendix. REFERENCES CROSS REFERENCES Enforcement of seizures, see 50 App. USCA § 17. Tort Claims Procedure, exception, see 28 USCA § 2680. Waiver of demand and compromise settlement, see 50 App. USCA § 29. LIBRARY REFERENCES American Digest System Effect of war on preexisting rights, liabilities, and remedies, see War and National Emergency k10(1) and 10(2). Enemies' property and property rights in general, see War and National Emergency k12. Trade and commerce with enemy in general, see War and National Emergency k15. Encyclopedias Effect of war on preexisting contracts, rights, and remedies, see C.J.S. War and National Defense §§ 14 and 18. Enemies' property and property rights under statutes, see C.J.S. War

and National Defense §§ 26(3) to 26(8). Trade and commerce with enemy in general, see C.J.S. War and National Defense § 17. Texts and Treatises Enemy aliens, capacity to sue or be sued, see Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1568. *161555 ANNOTATIONS NOTES OF DECISIONS I. II. GENERALLY 1-30 EFFECT OF WAR ON CONTRACTUAL AND OTHER RELATIONSHIPS 31-60 III. SEIZURE OF PROPERTY--GENERALLY 61-100 IV. PARTICULAR PROPERTY 101-140 V. PROCEEDINGS RELATING TO SEIZURE 141-190 VI. PROHIBITION ON PROSECUTION OF ACTIONS-GENERALLY 191 to 220 VII. ALIEN ENEMY AS PLAINTIFF 221-250 VIII. PRACTICE AND PROCEDURE 251-270 < For Detailed Alphabetical Note Index, see the Various Subdivisions. > I. GENERALLY < Subdivision Index > Constitutionality 1 Construction Construction - Generally 2 Construction - With other laws 3 Construction - With treaties 4

Law governing 6 Purpose 5 1. Constitutionality This section is within war powers of Congress and is not denial of due process. Great Northern Ry. Co. v. Sutherland, U.S.N.Y.1927, 47 S.Ct. 315, 273 U.S. 182, 71 L.Ed. 596. Denying person recovery of property seized under § 1 et seq. of this Appendix and vested in Attorney General is not deprivation of property without due process when claimant is an "enemy" within § 1 et seq. of this Appendix. N. V. Handelsbureau La Mola v. Kennedy, C.A.D.C.1962, 299 F.2d 923, 112 U.S.App.D.C. 92, certiorari denied 82 S.Ct. 1582, 370 U.S. 940, 8 L.Ed.2d 808, rehearing denied 83 S.Ct. 16, 371 U.S. 854, 9 L.Ed.2d 92. Congress in time of war may authorize and provide for seizure and sequestration, through executive channels, of property believed to be enemy owned, if adequate provision be made for return in case of mistake. Henkels v. Miller, C.C.A.2 (N.Y.) 1925, 4 F.2d 988, reversed on other grounds 46 S.Ct. 524, 271 U.S. 298, 70 L.Ed. 953. *161556 This section as amended by Act Nov. 4, 1918, § 1, and § 12, as amended by Act March 28, 1918, § 1 are not unconstitutional, as delegating legislative power; since they merely place on the President the duty of dividing the enemy property into classes specified therein. U S v. Chemical Foundation, D.C.Del.1924, 294 F. 300, affirmed 5 F.2d 191, affirmed as modified on other grounds 47 S.Ct. 1, 272 U.S. 1, 71 L.Ed. 131. Section 12 and § 7(e) of this Appendix requiring a corporation on demand of the Alien Property Custodian, to issue certificates of stock of alien enemy to Alien Property Custodian without requiring Custodian to surrender outstanding certificates, were constitutional, since the rights of such non-enemy bona fide holders were protected by this section. Miller v. Kaliwerke Aschersleben Aktien-

Gesellschaft, C.C.A.2 (N.Y.) 1922, 283 F. 746. The provision of subsec. (c) of this section, authorizing the Alien Property Custodian to seize property he determines to be enemy owned, without the right to claimant friend to have his claim determined before seizure, is not unconstitutional, in view of the right of such claimant to bring suit under § 9 of this Appendix, to have his claim determined, which protects all his substantial rights and merely provides a different procedure. Stohr v. Wallace, S.D.N.Y.1920, 269 F. 827, affirmed 41 S.Ct. 293, 255 U.S. 239, 65 L.Ed. 604. The existence of a right upon the part of claimant to regain his property wrongfully seized by Alien Property Custodian, and to do so completely, is essential to the constitutionality of § 1 et seq. of this Appendix. Standard Oil Co., New Jersey v. Markham, S.D.N.Y.1944, 57 F.Supp. 332. This section, in providing a summary method for obtaining possession of an enemy's property, is an exercise of the right conferred upon Congress by U.S.C.A.Const. Art. 1, § 8, cl. 11, and § 9 of this Appendix, giving any one not an enemy the right to sue the Alien Property Custodian in the federal court, and satisfies U.S.C.A.Const. Amend. 5 as to due process of law. Biesantz v. Supreme Council of Royal Arcanum, N.Y.Sup.1919, 175 N.Y.S. 46, 106 Misc. 545. 2. Construction In construing section (a) of this Appendix giving to nonenemy a remedy for seizure of his property as war measure, implication that by appropriation of private property to public use the United States undertakes to make just compensation for property must be considered. Becker Steel Co. of America v. Cummings, U.S.N.Y.1935, 56 S.Ct. 15, 296 U.S. 74, 80 L.Ed. 54. *161557 Provisions for seizure of enemy property are to be liberally construed. Von Bredow v. U. S., Ct.Cl.1959, 169 F.Supp. 256, 144 Ct.Cl. 465.

3. Construction with other laws Subsec. (c) of this section providing that the sole relief and remedy of any person having any claim to any property transferred to the Alien Property Custodian shall be that provided by the terms of § 1 et seq. of this Appendix cannot be deemed to limit only remedies available to nonenemies, nor could it be deemed not applicable to § 32 of this Appendix pertaining to return claims, even though subsec. (c) of this section was passed in 1918, and § 32 of this Appendix was passed in 1946, as subsec. (c) of this section speaks to the future as well as the past. Schilling v. Rogers, U.S.Dist.Col.1960, 80 S.Ct. 1288, 363 U.S. 666, 4 L.Ed.2d 1478. The provisions of this section and § 9 of this Appendix for seizure of property of enemies are different in character from criminal sanctions for trading with the enemy, and are not affected by criminal provisions. Uebersee Finanz-Korporation, A.G. v. Brownell, D.C.D.C.1955, 133 F.Supp. 615, affirmed 244 F.2d 789, 100 U.S.App.D.C. 341, certiorari denied 78 S.Ct. 141, 355 U.S. 878, 2 L.Ed.2d 108. 4. Construction with treaties Articles 23 and 24 of the Treaty with Prussia, relative to the rights of merchants of either country residing in the other, when war arises, has no application to the seizure by the Alien Property Custodian of stock in a New Jersey corporation beneficially owned by a German corporation. Stoehr v. Wallace, U.S.N.Y.1921, 41 S.Ct. 293, 255 U.S. 239, 65 L.Ed. 604. Treaty of Versailles, art. 297(d), (i), and annex 1, incorporated in Treaty of Berlin (42 Stat. 1939) by article 1, and article 2, subd. 1 of latter treaty, justified denial of relief in equity for recovery of property seized. Klein v. Palmer, C.C.A.2 (N.Y.) 1927, 18 F.2d 932. Obligation of defendants to pay percentage of profits of firm to

plaintiff, who had already performed his part of agreement, was not barred by Treaty of Peace with Germany, art. 2, par. 1, which incorporates part of Treaty of Versailles, 42 Stat. 1939, relating to dissolution of contracts. Forstner v. Speidel, D.C.R.I.1924, 1 F.2d 988. *161558 Under treaty between Poland and United States, 48 Stat. 1507, Consul General of Poland, acting in behalf of national, surviving spouse residing in Poland, could institute proceeding to sell property of deceased for purpose of distributing respective shares of estate to parties entitled thereto. In re Skewrys' Estate, N.Y.Sur.1944, 46 N.Y.S.2d 942, 181 Misc. 479. Under joint resolution of Congress terminating war with Germany and Treaty of Friendship, Commerce and Navigation between United States and Federal Republic of Germany, property which had belonged to decedent killed in 1942 and which was seized in 1949 by the Attorney General pursuant to § 1 et seq. of this Appendix remained vested in him. In re Mokros' Estate, Minn.1964, 130 N.W.2d 121, 268 Minn. 438. Subsec. (b) of this section prohibiting prosecution of action by the enemy prior to end of war abrogates provision of treaty with Germany under date of December 8, 1923, 44 Stat. 2133, 2135, granting freedom of access to courts in United States by non-resident German nationals. Meier v. Schmidt, Neb.1948, 34 N.W.2d 400, 150 Neb. 383, rehearing denied 35 N.W.2d 500, 150 Neb. 647. 5. Purpose The object of subsec. (b) of this section is, not to defeat the alien enemy of his right to recover whatever may be owing him, nor to shield the citizen from the enforcement of his just obligations, but is to obviate any advantage being derived by the enemy, directly or indirectly, pending hostilities. In re Hohm's Estate, N.Y.Sur.1945, 59 N.Y.S.2d 799, 186 Misc. 536.

The purpose of subsec. (b) of this section is not confiscation of property or to deprive courts of jurisdiction of action by enemy alien but is to prohibit and prevent lending of aid and comfort to enemy by frustrating enemy's attempt to garner sinews of war. Meier v. Schmidt, Neb.1948, 34 N.W.2d 400, 150 Neb. 383, rehearing denied 35 N.W.2d 500, 150 Neb. 647. 6. Law governing Section 1 et seq. of this Appendix, authorizing the Alien Property Custodian to require new certificates of corporate stock owned by alien enemies to be issued to him under certain circumstances overrides the Uniform Stock Transfer Law of the state of New York, McKinney's Personal Property Law, § 174, relating to the issuance of new stock certificates, in so far as the two are in conflict. Miller v. Kaliwerke Aschersleben Aktien-Gesellschaft, C.C.A.2 (N.Y.) 1922, 283 F. 746. *161559 Whether the interest of an enemy alien falls within class of property subject to seizure under § 1 et seq. of this Appendix, is a question of state law. Kammholz v. Allen, S.D.N.Y.1957, 155 F.Supp. 511, affirmed 256 F.2d 437. The Alien Property Custodian was entitled to dividends from and possession of stock comprising corpus of trust created by New York resident's will, where beneficiary and remaindermen were residents and citizens of Germany at time of vesting order, regardless of whether one remainderman had become a resident of Austria and notwithstanding McKinney's N.Y. Personal Property Law, § 15 prohibiting assignment of trust interests. Central Hanover Bank & Trust Co. v. Markham, S.D.N.Y.1946, 68 F.Supp. 829. As war measures enacted by Congress necessarily override state statutes in conflict therewith, trustees, holding under a will trust funds for alien enemy beneficiaries, are not entitled, as a condition precedent to delivering such funds to the Alien Property Custodian, to receive a refunding bond required by Legacy Act, § 5; that statute giving way

to the provision in subsec. (e) of this section, declaring that any payment or delivery of money or property to the Alien Property Custodian shall be full acquittance for all purposes of the obligation of the person making it to the extent of the same. Keppelmann v. Palmer, N.J.Err. & App.1919, 108 A. 432, 91 N.J. Eq. 67, certiorari denied 40 S.Ct. 392, 252 U.S. 581, 64 L.Ed. 727. Attorney General, as successor to Alien Property Custodian, who was vested with beneficial interest of inter vivos trust created by Japanese national by means of issuance of a vesting order under § 1 et seq. of this Appendix, could not demand termination of trust by virtue of McKinney's N.Y. Personal Property Law § 23 providing for revocation of inter vivos trust with the consent of the settlor and beneficiary. In re Rihei Huga's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 998. In view of this section and the executive orders thereunder Alien Property Custodian acquired the interest of an alien enemy in the income of a trust of personal property, notwithstanding McKinney's N.Y. Personal Property Law, § 15, as amended by Laws 1911, c. 327, forbidding transfer of income of trust of personalty. In re Bendit's Will, N.Y.A.D. 1 Dept.1925, 212 N.Y.S. 526, 214 A.D. 446. Section 1 et seq. of this Appendix does not confer on the Alien Property Custodian special rights and preferences overriding state statutes relating to probate, escheat, or to the granting of consent to initiate proceedings to recover escheated property. Rogers v. Holmes, Or.1958, 332 P.2d 608, 214 Or. 687. *161560 The validity of bequest by American citizen to German nationals was governed by the laws of the state of testatrix' domicile. In re Thramm's Estate, Cal.App. 2 Dist.1947, 183 P.2d 97, 80 Cal.App.2d 756. II. EFFECT OF WAR ON CONTRACTUAL AND OTHER RELATIONSHIPS

< Subdivision Index > Generally 31 Administration of estates and trusts 39 Bank deposits 32 Bonds 33 Contracts Contracts - Generally 34 Contracts - Miscellaneous contracts 36 Contracts - Purchase and sale contracts 35 Debtor and creditor 37 Estates and trusts Estates and trusts - Generally 38 Estates and trusts - Administration of estate 39 Partnerships 40 Purchase and sale contracts 35 Stocks 41 31. Generally Commercial intercourse with the enemy is prohibited during war. The William Bagaley, U.S.La.1866, 72 U.S. 377, 18 L.Ed. 583, 5 Wall. 377. See, also, New York Life Insurance Co. v. Davis, Va.1877, 95 U.S. 425, 5 Otto. 425, 24 L.Ed. 453; U.S. v. Grossmayer, Ct.Cl.1870, 76 U.S. 72, 9 Wall. 72, 19 L.Ed. 627; White v. Burnley, Tex.1858, 61 U.S. 235, 20 How. 235, 15 L.Ed. 886; Jecker, Jorre & Co. v. Montgomery, Dist.Col.1855, 59 U.S. 110, 18 How. 110, 15 L.Ed. 311; Scholefeld v. Eichelberger, Md.1833, 32 U.S. 586, 7 Pet. 586, 8 L.Ed. 793; The Rapid, C.C.Mass.1812, Fed.Cas. No. 11,576, affirmed 12 U.S. 155, 8 Cranch 155, 3 L.Ed. 520; Taylor v. Albion Lumber Co., 1917, 168 P. 348, 176 Cal. 347, L.R.A.1918B, 185. Declaration of existence of war is not alone sufficient, ex proprio vigore, to avoid all obligations between citizens and subjects of an alien enemy. Fritz Schulz, Jr., Co. v. Raimes & Co., N.Y.City Ct.1917, 164 N.Y.S. 454, 99 Misc. 626, affirmed 166 N.Y.S. 567, 100

Misc. 697. War operates as an interdiction on all commercial or other specific intercourse and communication with the public enemy, so that without a license all commercial transactions, all trading between citizens or states or nations at war, is unlawful, and all contracts growing out of such trading or out of voluntary intercourse with a public enemy are void. In re Kielsmark's Will, Iowa 1920, 177 N.W. 690, 188 Iowa 1378. See, also, Techt v. Hughes, 1920, 128 N.E. 185, 229 N.Y. 222, certiorari denied 41 S.Ct. 14, 254 U.S. 643, 65 L.Ed. 454. *161561 The federal policy relating to alien enemies' property interests located within the United States was fixed by § 1 et seq. of this Appendix so as to mitigate the rules prohibiting intercourse between the citizens of warring nations and to permit under careful safeguards certain kinds of business to be carried on. State ex rel. Biering v. District Court, Fourteenth Judicial District, Meagher County, Mont.1943, 140 P.2d 583, 115 Mont. 174. 32. Bank deposits During World War and thereafter to July 14, 1919, when trade relations between United States and Austria were resumed, American depositor could not lawfully make demand for payment of deposit in Austrian bank, even if bank had agent in United States, and though bank during war continued to make payments on depositor's outstanding orders. Zimmermann v. Miller, S.D.N.Y.1924, 2 F.2d 629, reversed on other grounds 7 F.2d 443, appeal dismissed 47 S.Ct. 449, 273 U.S. 780, 71 L.Ed. 889, affirmed 47 S.Ct. 625, 274 U.S. 253, 71 L.Ed. 1034. 33. Bonds Acquisition of certain railroad bonds by an alien enemy did not, ipso facto, terminate obligation of debtor corporation to recognize the bonds as valid and outstanding. R. M. Smythe & Co. v. Chase Nat.

Bank of City of New York, C.A.2 (N.Y.) 1961, 291 F.2d 721. 34. Contracts--Generally Contracts with the enemy should not be carried out during time of war. U.S. v. Grossmayer, U.S.Ct.Cl.1869, 76 U.S. 72, 19 L.Ed. 627, 9 Wall. 72. See, also, New York Life Ins. Co. v. Statham, Miss. 1876, 93 U.S. 24, 3 Otto. 24, 23 L.Ed. 789; Semmes v. City Fire Ins. Co., C.C.Conn.1869, Fed.Cas. No. 12,651, affirmed 80 U.S. 158, 13 Wall. 158, 20 L.Ed. 490; Grinnan v. Edwards, 1883, 21 W.Va. 347. War does not affect the relations of the parties to an executed contract, but merely suspends remedies available thereunder. Zimmerman v. Hicks, C.C.A.2 (N.Y.) 1925, 7 F.2d 443, appeal dismissed 47 S.Ct. 449, 273 U.S. 780, 71 L.Ed. 889, affirmed 47 S.Ct. 625, 274 U.S. 253, 71 L.Ed. 1034. Contracts entered into before the beginning of hostilities continue in force during the war, and may be sued upon if to the disadvantage of the alien enemy defendant, who may always defend and who may in exceptional cases sue. Compagnie Universelle De Telegraphie Et De Telephonie Sans Fil v. United States Service Corporation, N.J.Ch.1915, 95 A. 187, 84 N.J. Eq. 604, affirmed 96 A. 292, 85 N.J. Eq. 601. *161562 Where, under contract fully executed by enemy before outbreak of hostilities, only unilateral obligation of payment remains, obligation is suspended. Neumond v. Farmers' Feed Co. of New York, N.Y.1926, 155 N.E. 100, 244 N.Y. 202. All contracts growing out of trading with the public enemy or out of voluntary intercourse with a public enemy are void. In re Kielsmark's Will, Iowa 1920, 177 N.W. 690, 188 Iowa 1378. 35. ---- Purchase and sale contracts German corporation's rights under option to repurchase stock in

New York corporation was terminated on entry of United States into war. Matheson v. Hicks, D.C.N.Y.1926, 10 F.2d 872. A sale to a neutral of goods in transitu, made to avoid loss by capture of the goods, is void, as a fraud on belligerent rights. Stohr v. Wallace, S.D.N.Y.1920, 269 F. 827, affirmed 41 S.Ct. 293, 255 U.S. 239, 65 L.Ed. 604. A contract between citizens of the United States, made in 1916, for the purchase of German war bonds, valid when made, was not destroyed by the severance of peaceful relations between this country and Germany, so as to give the purchaser a right to recover the amount paid for bonds not delivered, as money had and received. Erdreich v. Zimmermann, N.Y.A.D. 1 Dept.1920, 179 N.Y.S. 829, 190 A.D. 443. That a purchaser of rubber goods had been indicted for trading with the enemy in time of war was not adequate ground for the cancellation of the contract by the seller. L. & M. Rubber Co. v. Kalter, N.Y.Sup.1918, 172 N.Y.S. 486. See, also, Nelson v. Trigg, 1877, 3 Tenn.Cas. 733; Shaw v. Carlile, 1872, 56 Tenn. 594, 9 Heisk. 594. Executory contract for the manufacture and sale of lumber for shipment to Germany was annulled by commencement of war and parties released from further compliance. Heidner v. St. Paul & Tacoma Lumber Co., Wash.1923, 215 P. 1, 124 Wash. 652, certiorari denied 44 S.Ct. 230, 263 U.S. 721, 68 L.Ed. 524. 36. ---- Miscellaneous contracts Where one alien corporation has made an agreement to pay another alien corporation part of its earnings, the agreement is not abrogated by the taking over of the property of both corporations by the Alien Property Custodian and in returning the property the custodian will give effect to the contract as to earnings accruing during his control. Woods v. Deutsche Ton & Steinzeug-Werke Aktiengesellschaft, App.D.C.1933, 67 F.2d 375, 62 App.D.C. 297.

*161563 Percentage of profits to which alien enemy under executed contract was entitled out of business after withdrawal of his capital was merely suspended during war, and not terminated. Forstner v. Speidel, D.C.R.I.1924, 1 F.2d 988. A contract by one alien enemy to make a will requiring his executrix and devisees to pay another alien enemy a certain sum of money within four months after his death was not void, under this section; such section being inapplicable to contracts between alien enemies. Ohlendiek v. Schuler, C.C.A.6 (Ohio) 1924, 299 F. 182, certiorari denied 45 S.Ct. 93, 266 U.S. 608, 69 L.Ed. 465. A contract by parents, who were German subjects, made on leaving the United States before this country entered the war, for the care of their children who were left in the United States, was valid, and not abrogated by the subsequent declaration of war with Germany. Springer v. Garvan, S.D.Ohio 1920, 276 F. 595. A contract between two domestic corporations for the carriage of cargoes of nitrates from South American ports to domestic ports was not terminated by the declaration of the war with Germany, though thereafter its performance was subject to greater hazards. Luckenbach S.S. Co. v. W.R. Grace & Co., C.C.A.4 (Va.) 1920, 267 F. 676, certiorari denied 41 S.Ct. 14, 254 U.S. 644, 65 L.Ed. 654. A contract between an English corporation, citizens of the United States, and a German firm, was not rendered void by English Trading with the Enemy Acts Dec. 23, 1915, or Jan. 27, 1916, and the English company could sue for its specific performance. Lindenberger Cold Storage & Canning Co. v. J. Lindenberger, Inc., W.D.Wash.1916, 235 F. 542. France being under German control in November, 1942, the Bank of France became an alien enemy, and though its attorneys could still defend actions previously brought against the bank, their authority did not extend beyond such defense, nor could the bank through its

attorneys in New York enter into a binding agreement here, even if its attorneys had plenary power to represent it. Stojowski v. Banque De France, N.Y.1945, 61 N.E.2d 414, 294 N.Y. 135. 37. Debtor and creditor Under this section debtor is permitted to pay his debt owing to enemy to Alien Property Custodian only, and this must be with President's consent. Guiness v. Miller, C.C.A.2 (N.Y.) 1924, 299 F. 538, certiorari granted 44 S.Ct. 639, 265 U.S. 579, 68 L.Ed. 1189, affirmed in part, reversed in part on other grounds 46 S.Ct. 46, 269 U.S. 71, 70 L.Ed. 168. *161564 Money in hands of an administrator, belonging to alien enemy, will be held to be paid to the alien at end of war, or in the meantime to the constituted authority of the United States entitled to receive it. In re Bang's Estate, N.Y.Sur.1917, 167 N.Y.S. 256, 101 Misc. 495. State of war does not confiscate a debt owing by resident to nonresident citizen of enemy country, though it may suspend remedy of collection through courts or prohibit transmission of proceeds to the enemy country. Rothbarth v. Herzfeld, N.Y.Sup.1917, 166 N.Y.S. 744, 100 Misc. 470, reversed on other grounds 167 N.Y.S. 199, 179 A.D. 865, affirmed 119 N.E. 1075, 223 N.Y. 578. 38. Estates and trusts--Generally The right of a citizen to bequeath personal property to a citizen of Germany before the war was not abridged by the declaration of war, nor did the bequest violate § 1 et seq. of this Appendix by becoming operative during the war. In re Roeck's Estate, N.Y.Sur.1922, 195 N.Y.S. 505, 119 Misc. 190, affirmed 200 N.Y.S. 917, 206 A.D. 753, affirmed 143 N.E. 742, 237 N.Y. 560. Bequest to German legatees while country was at war with Germany was not void because of § 1 et seq. of this Appendix, but

property passed even if unlawfully. In re Shafer's Estate, S.D.1926, 209 N.W. 355, 50 S.D. 232, adhered to on rehearing 216 N.W. 948, 52 S.D. 182. A devise to an alien enemy is not void under § 1 et seq. of this Appendix, but the property devised will be held by the executor until termination of the war, since such a devise does not give "aid or comfort to the enemy" nor increase his "resources," and since the making of the will is not an act of "trading" within § 1 et seq. of this Appendix. In re Kielsmark's Will, Iowa 1920, 177 N.W. 690, 188 Iowa 1378. Where the heirs of an assured under a fraternal benefit certificate have succeeded to the rights of beneficiaries, but cannot sue in the courts of this country, being enemy aliens, an order directing the funds due from the insurer to be retained for distribution after the termination of the war was proper. Weiditschka v. Supreme Tent of Knights of the Maccabees of the World, Iowa 1919, 170 N.W. 300, 188 Iowa 183, rehearing denied 175 N.W. 835, 188 Iowa 183. *161565 Instruments purporting to waive right of heir of an alien who died intestate to participate in distribution of estate of alien which was situated in the United States were void under § 1 et seq. of this Appendix and rules and regulations issued, pursuant thereto. In re Estate of Meyer, Cal.App. 2 Dist.1951, 238 P.2d 597, 107 Cal.App.2d 799. Bequest of personal property to German Red Cross for relief of widows, orphans, and invalids of World War, was not void as against public policy, since bequest to alien enemy is not prohibited by judicial decisions, Rev.St.Mo.1919, §§ 590 to 594, or under § 1 et seq. of this Appendix, and beneficiaries were not "enemy" after Armistice within U.S.C.A.Const. Art. 3,§ 3, and Const.Mo. Art. 2, § 13, prohibiting giving of aid and comfort to enemy. In re Rahn's Estate, Mo.1926, 291 S.W. 120, 316 Mo. 492, certiorari denied 47 S.Ct. 591, 274 U.S. 745, 71 L.Ed. 1325.

39. ---- Administration of estate One to whom ancillary letters to administer local assets of German resident were issued in 1935 did not become disqualified to continue in office, upon declaration of war between the United States and Germany in 1941, on ground that he represented an alien enemy estate. In re Hohm's Estate, N.Y.Sur.1945, 59 N.Y.S.2d 799, 186 Misc. 536. The right of attorney designated by Alien Property Custodian to appear in proceeding to probate will did not preclude appearance by Public Administrator who had been cited and by special guardian for unknown infants. In re Schultz' Estate, N.Y.Sur.1943, 42 N.Y.S.2d 537, 180 Misc. 1023. 40. Partnerships After the declaration of war, all trading or commercial intercourse between American and German partners was unlawful, and opposed to the public policy of United States, even before the enactment of this section recognizing that previous trading with the enemy was illegal. Mayer v. Garvan, C.C.A.1 (Mass.) 1922, 278 F. 27. Under the settled law of the United States, which is based on public policy, a partnership between citizens of the United States and citizens or subjects of a foreign country is dissolved by a declaration of war between the two countries, regardless of the fact that it is a partnership of the foreign country, by whose laws war does not effect a dissolution. Rossie v. Garvan, D.C.Conn.1921, 274 F. 447. *161566 Where owner of entire capital of New York partnership had been an enemy alien for several years prior to his death on October 8, 1917, partnership was dissolved by operation of law on declaration of war on April 6, 1917. Sorenson v. Sutherland, S.D.N.Y.1939, 27 F.Supp. 44, reversed on other grounds 109 F.2d 714, certiorari granted 60 S.Ct. 1103, 310 U.S. 621, 84 L.Ed. 1394,

affirmed 61 S.Ct. 326, 311 U.S. 494, 85 L.Ed. 297. 41. Stocks See, also, Notes of Decisions under section 5 of this Appendix. An American citizen residing in Germany during the war being an alien enemy, within § 1 et seq. of this Appendix, a transfer in Germany of her subscription warrant for increased stock in a domestic corporation on December 21, 1918, was absolutely void, within the meaning of § 1 et seq. of this Appendix. Noble v. Great American Ins. Co., N.Y.A.D. 1 Dept.1922, 194 N.Y.S. 60, 200 A.D. 773, affirmed 139 N.E. 746, 235 N.Y. 589. III. SEIZURE OF PROPERTY--GENERALLY < Subdivision Index > Generally 61 Dower, effect of seizure 70 Effect of seizure Effect of seizure - Generally 68 Effect of seizure - Dower 70 Effect of seizure - Legacies 71 Effect of seizure - Mortgages 72 Effect of seizure - Partnership interests 75 Effect of seizure - Patent licenses 74 Effect of seizure - Rights of nonenemies 76 Effect of seizure - Stockholders 73 Effect of seizure - Trademarks 77 Effect of seizure - Transfer of title 69 Effect of seizure - Trusts 78 Lawfulness of seizure 67 Legacies, effect of seizure 71 Mortgages, effect of seizure 72 Notification to custodian of rights of alien enemy 64 Partnership interests, effect of seizure 75

Patent licenses, effect of seizure 74 Presidential determination of seizure 62 Property held for benefit of enemy 65 Right of seizure 63 Rights of nonenemies, effect of seizure 76 Situs of property 66 *161567 Stockholders, effect of seizure 73 Termination of hostilities Termination of hostilities - Generally 80 Termination of hostilities - Time of demand 81 Time of demand, termination of hostilities 81 Trade-marks, effect of seizure 77 Transfer as discharge from liability 79 Transfer of title, effect of seizure 69 Trusts, effect of seizure 78 61. Generally Seizure provisions of this section were designed to permit the United States to take title to, and possession of, all property in country owned by enemy aliens; but Congress did not intend thereby to create new rules of property applicable to Custodian alone. Rogers v. Ercona Camera Corp., C.A.D.C.1960, 277 F.2d 94, 107 U.S.App.D.C. 295, 124 U.S.P.Q. 489. Power to seize enemy's property during World War rested on Congress' constitutional power of making captures on land and water, but Congress could sequester property without confiscating it. Commissioner of Internal Revenue v. Stearns, C.C.A. 2 1933, 65 F.2d 371, certiorari denied 54 S.Ct. 90, 290 U.S. 670, 78 L.Ed. 579. Seizure of property under this section on August 5th was a continuing act, which could be sustained under amendment of November 4, 1918. Miller v. Lautenburg, N.Y.A.D. 1 Dept.1924, 205 N.Y.S. 214, 209 A.D. 608, affirmed 145 N.E. 907, 239 N.Y. 132. Unless the political department has acted, courts are not

inclined to destroy alien property rights during belligerency. Breuer v. Beery, Iowa 1922, 189 N.W. 717, 194 Iowa 243. 62. Presidential determination of seizure Under subsec. (c) of this section, providing for the seizure of property which the President, after investigation, shall determine to be enemy-owned, a personal determination by the President is not required, in view of § 5 of this Appendix. Stoehr v. Wallace, U.S.N.Y.1921, 41 S.Ct. 293, 255 U.S. 239, 65 L.Ed. 604. *161568 Under this section, providing for the seizing of property of alien enemies, "which the President after investigation shall determine is so owing or so belongs or is so held," the determination by the President was not necessarily a personal determination by him, since he could act through the Alien Property Custodian appointed by him. Commercial Trust Co. of New Jersey v. Miller, C.C.A.3 (N.J.) 1922, 281 F. 804, affirmed 43 S.Ct. 486, 262 U.S. 51, 67 L.Ed. 858. 63. Right of seizure Where action is brought by plaintiff to recover securities vested in Attorney General under § 9 of this Appendix, there was no burden cast upon Attorney General to prove that the property was owned by an ascertained national of Germany on date of vesting, since under this section there is conferred authority to summarily seize property upon determination that it was enemy owned, and such seizure is lawful even though determination is erroneous. La Due & Co. v. Rogers, C.A.7 (Ill.) 1958, 259 F.2d 905, certiorari denied 79 S.Ct. 588, 359 U.S. 911, 3 L.Ed.2d 575. Under this section and § 9 of this Appendix, the Custodian is authorized to seize property which he determines is alien owned, though it may ultimately appear that in fact it belonged to a citizen. American Exchange Nat. Bank v. Garvan, C.C.A.2 (N.Y.) 1921, 273 F. 43, affirmed 43 S.Ct. 165, 260 U.S. 706, 67 L.Ed. 474.

The fact that the United States had instituted libel for forfeiture of vessel claimed by enemy alien did not preclude Alien Property Custodian from exercising his valid power to declare vested in himself all interest of claimant in vessel. The Antoinetta, E.D.Pa.1943, 49 F.Supp. 148, affirmed 153 F.2d 138, certiorari denied 66 S.Ct. 1368, 328 U.S. 863, 90 L.Ed. 1633, rehearing denied 67 S.Ct. 31, 329 U.S. 820, 91 L.Ed. 698, certiorari denied 66 S.Ct. 1369, 328 U.S. 864, 90 L.Ed. 1634, rehearing denied 67 S.Ct. 32, 329 U.S. 820, 91 L.Ed. 698, rehearing denied 67 S.Ct. 32, 329 U.S. 821, 91 L.Ed. 698, certiorari denied 66 S.Ct. 1370, 328 U.S. 864, 90 L.Ed. 1635, rehearing denied 67 S.Ct. 33, 329 U.S. 821, 91 L.Ed. 698, rehearing denied 67 S.Ct. 33, 329 U.S. 821, 91 L.Ed. 699, certiorari denied 66 S.Ct. 1375, 328 U.S. 864, 90 L.Ed. 1635, rehearing denied 67 S.Ct. 34, 329 U.S. 821, 91 L.Ed. 699. *161569 Under this section, Alien Property Custodian could seize enemy property found within this country, though former owner was deceased. Sorenson v. Sutherland, S.D.N.Y.1939, 27 F.Supp. 44, reversed on other grounds 109 F.2d 714, certiorari granted 60 S.Ct. 1103, 310 U.S. 621, 84 L.Ed. 1394, affirmed 61 S.Ct. 326, 311 U.S. 494, 85 L.Ed. 297. Under Ex.Ord. No. 9095, formerly set out as note under § 6 of this Appendix, empowering Alien Property Custodian to "vest" any property of enemy national in the process of administration, the term "vest" is equivalent to "seize" and gives the Custodian the right to the immediate possession of the property for the benefit of the United States. In re Viscomi's Estate, N.Y.Co.Ct.1944, 53 N.Y.S.2d 416, 183 Misc. 374. 64. Notification to custodian of rights of alien enemy Assuming that it was a corporation's duty to inquire as to the whereabouts of an alien enemy stockholder residing in Germany, it was justified in accepting the statement of her agent that he believed she was residing in Holland, and relying thereon, with no reason to

think she was an alien enemy, it was not called on to notify the Alien Property Custodian of her subscription rights to increased stock. Noble v. Great American Ins. Co., N.Y.A.D. 1 Dept.1922, 194 N.Y.S. 60, 200 A.D. 773, affirmed 139 N.E. 746, 235 N.Y. 589. 65. Property held for benefit of enemy Deposit made in bank by alien enemy's debtor under agreement with Department of Justice for appointment of Alien Property Custodian and enactment of § 1 et seq. of this Appendix was not held "for the benefit of" an alien within such § 1 et seq. so as to entitle Custodian thereto. Simon v. Miller, S.D.N.Y.1923, 298 F. 520. 66. Situs of property Obligations owned by German national and evidenced by negotiable bearer bonds located outside the United States and last reported in Russian hands, were proper objects of vesting order and seizure by Alien Property Custodian under § 1 et seq. of this Appendix and Attorney General, as successor to the Alien Property Custodian, could recover payment from obligor and indenture trustee located within the United States. Cities Service Co. v. McGrath, U.S.N.Y.1952, 72 S.Ct. 334, 342 U.S. 330, 96 L.Ed. 359. The situs of corporate stock, for the purpose of seizure by the Alien Property Custodian was in the state which created the corporation, and in which it resided, notwithstanding the location of the stock certificates, since a share of stock and the certificate of the share are two different things; the certificate being mere evidence of the stockholder's interest as distinguished from the stock itself. Miller v. Kaliwerke Aschersleben Aktien-Gesellschaft, C.C.A.2 (N.Y.) 1922, 283 F. 746. *161570 Proceeds of collection for account of, and due, customers of collection agency's Hamburg office were property within United States and subject to seizure under this section, where collection agency was subject to control of U.S. courts. McGrath v.

Agency of Chartered Bank of India, Australia & China, S.D.N.Y.1952, 104 F.Supp. 964, affirmed 201 F.2d 368. Where Japanese national created inter vivos trust for benefit of other Japanese nationals and provided that trustee was to be a New York bank and that the trust was to be considered a New York trust, the seizure of property rights of beneficiaries thereof by the issuance of a vesting order by the Attorney General, as successor to the Alien Property Custodian, could not vest res outside jurisdiction of United States. In re Toshizo Huga's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 1004. Where by terms of inter vivos trust created by Japanese national, such trust terminated because beneficiary thereof had attained stated age, vesting order issued by Attorney General, as successor of Alien Property Custodian, vested ownership of corpus and income of trust in Attorney General, but such assets that were physically located without United States could not be affected by such order. In re Masayo Huga's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 987. 67. Lawfulness of seizure Seizure of property by Alien Property Custodian upon his determination that property was enemy owned was lawful, even though determination was erroneous. Becker Steel Co. of America v. Cummings, U.S.N.Y.1935, 56 S.Ct. 15, 296 U.S. 74, 80 L.Ed. 54. Seizure of property of subject of Germany, who entered active service in German army in World War, leaving wife and child in United States, was lawful, and under this section, his interest in land was ended, and Alien Property Custodian was given authority to exercise all rights or powers of absolute owner, at least until Congress should otherwise direct. Von Schwerdtner v. Piper, D.C.Md.1928, 23 F.2d 862. Where, a contract for cash sale of an interned German vessel, made in February, 1917, and a one-day note for the purchase price and

a bill of sale were deposited in escrow until the purchaser should be satisfied with the title, purchaser who never formally accepted title but obtained decree for specific performance had not acquired title prior to the Executive Order of the President of June 30, 1917, taking possession of German vessels as affects validity of seizure as against him. The Muscoota, C.C.A.9 (Cal.) 1926, 16 F.2d 212. That seizure of property by Alien Property Custodian, preceded by three months adoption of amendment of November 4, 1918, of subsec. (c) of this section, authorizing seizure was immaterial, where for nearly five years Custodian maintained hostile and exclusive possession, as seizure was continuing one, and§ 12 of this Appendix, gave Custodian position of common-law trustee with powers of management and sale. Miller v. Lautenburg, N.Y.1924, 145 N.E. 907, 239 N.Y. 132. *161571 68. Effect of seizure--Generally After seizure of German partnership's right to insurance premiums Custodian was only one who could make claim or bring suit against one owing such commissions. Mutzenbecher v. Ballard, D.C.N.Y.1925, 16 F.2d 173, affirmed 16 F.2d 174, certiorari denied 47 S.Ct. 571, 273 U.S. 766, 71 L.Ed. 881. The seizure, in time of war, of property believed to be enemy owned, has no resemblance to the condemnation or appropriation of private property for public use. Henkels v. Miller, C.C.A.2 (N.Y.) 1925, 4 F.2d 988, reversed on other grounds 46 S.Ct. 524, 271 U.S. 298, 70 L.Ed. 953. A seizure of property by the Alien Property Custodian, under direction of the President, settles the Custodian's right to possession of property, under subsec. (c) of this section, but does not determine the ownership thereof, and a claim may be filed by a resident friend, and subsequently suit brought to recover the property, under § 9 of this Appendix. Stohr v. Wallace, S.D.N.Y.1920, 269 F. 827, affirmed 41 S.Ct. 293, 255 U.S. 239, 65 L.Ed. 604.

Interests which alien enemies had in vessels at time of seizure thereof passed to Alien Property Custodian for benefit of United States, but the Custodian could not take any greater interest than the aliens had. U.S. v. The San Leonardo, E.D.N.Y.1942, 51 F.Supp. 107, motion denied 71 F.Supp. 852. The seizure of the claim did not make it the property of the United States. Lipmanowich v. Crookston Lumber Co., Minn.1926, 210 N.W. 47, 168 Minn. 332. 69. ---- Transfer of title Under section 1 et seq. of this Appendix lawful seizure of enemy property transferred title from the alien to the United States with reservation that if seizure was erroneous and property was not enemy owned, its recovery could be secured in a suit brought by owner against Alien Property Custodian or Treasurer as agents of United States. Cummings v. Hardee, App.D.C.1939, 102 F.2d 622, 70 App.D.C. 18, certiorari denied 59 S.Ct. 1033, 307 U.S. 637, 83 L.Ed. 1518. *161572 Seizure of alien's property under this section divested alien owner of every right in respect of property or money so seized and passed title thereto to the United States. Balkan Nat. Ins. Co. v. Commissioner of Internal Revenue, C.C.A. 2 1939, 101 F.2d 75. See, also, U.S. v. Chemical Foundation, C.C.A.Del.1925, 5 F.2d 191, modified on other grounds 47 S.Ct. 1, 272 U.S. 1, 71 L.Ed. 131; Munich Reinsurance Co. v. First Reinsurance Co. of Hartford, D.C.Conn.1924, 300 F. 345, appeal dismissed 6 F.2d 742, appeal dismissed 47 S.Ct. 458, 273 U.S. 666, 71 L.Ed. 830; Sorenson v. Sutherland, S.D.N.Y.1939, 27 F.Supp. 44, reversed on other grounds 109 F.2d 714, affirmed 61 S.Ct. 326, 311 U.S. 494, 85 L.Ed. 297; Vahle v. Markham, D.C.Pa.1946, 5 F.R.D. 315. Alien Property Custodian holds full and complete title to enemy property on behalf of the United States, without any beneficial interest

remaining in the former owner, and he may deal with such property, including the selling of it, in any manner appropriate to the interests of the United States. U.S. v. Borax Consol., N.D.Cal.1945, 62 F.Supp. 220. Alien Property Custodian, upon seizure of proceeds of sale of cargo of Italian vessel deposited in registry of court, acquired absolute title to fund on deposit and the only remedy thereafter available to any person not an enemy, including proctor for claimant was to file a claim with the Custodian and thereafter bring suit to establish his rights. The Brennero, D.C.N.J.1944, 53 F.Supp. 441, affirmed in part, reversed in part on other grounds 153 F.2d 138, certiorari denied 66 S.Ct. 1368, 328 U.S. 863, 90 L.Ed. 1633, rehearing denied 67 S.Ct. 31, 329 U.S. 820, 91 L.Ed. 698, certiorari denied 66 S.Ct. 1369, 328 U.S. 864, 90 L.Ed. 1634, rehearing denied 67 S.Ct. 32, 329 U.S. 820, 91 L.Ed. 698, rehearing denied 67 S.Ct. 32, 329 U.S. 821, 91 L.Ed. 698, certiorari denied 66 S.Ct. 1370, 328 U.S. 864, 90 L.Ed. 1635, rehearing denied 67 S.Ct. 33, 329 U.S. 821, 91 L.Ed. 698, rehearing denied 67 S.Ct. 33, 3, certiorari denied 66 S.Ct. 1375, 328 U.S. 864, 90 L.Ed. 1635, rehearing denied 67 S.Ct. 34, 329 U.S. 821, 91 L.Ed. 699. Enemy alien property seized by the United States under this section became property of the United States. Sorenson v. Sutherland, D.C.N.Y.1939, 27 F.Supp. 44, reversed on other grounds 109 F.2d 714, certiorari granted 60 S.Ct. 1103, 310 U.S. 621, 84 L.Ed. 1394, affirmed 61 S.Ct. 326, 311 U.S. 494, 85 L.Ed. 297. Where order vested alien owned property in Alien Property Custodian for benefit of United States, alien was divested of every right in respect to such property and United States acquired title to such property as completely as if by conveyance or transfer. In re Von Rumohr's Will, N.Y.A.D. 4 Dept.1954, 135 N.Y.S.2d 177, 284 A.D. 773. *161573 The federal government acting under its war powers took not a qualified or trust title, but an absolute title, to

property of alien, and any consideration which it chooses to manifest with respect to other claims against the property so seized is a mere act of grace. Anglo-Continentale Trust Maatschappij v. Allgemeine Elektricitaets-Gesellschaft, N.Y.Sup.1939, 12 N.Y.S.2d 964. 70. ---- Dower Seizure in 1918 of property of alien enemy divested wife's dower right, since, as law stood at that time, a woman married to an alien became an alien herself, and determination that owner of property was an alien enemy was equivalent to a like determination as to status of wife. Miller v. Lautenburg, N.Y.1924, 145 N.E. 907, 239 N.Y. 132. 71. ---- Legacies Seizure of the interest under a will of an alien legatee under which she was to receive during her lifetime the interest on certain investments, vested in the Alien Property Custodian that interest, both as to interest coming due during the continuance of hostilities and since the Act of July 2, 1921, 42 Stat. 105, and he is entitled to such interest payments until their disposition is provided for by Congress. Hess v. Miller, D.C.Fla.1925, 6 F.2d 388. 72. ---- Mortgages Where demand of Alien Property Custodian for principal and accrued interest under mortgage to one coming under § 1 et seq. of this Appendix was based on report of mortgagor that interest had been paid in full to certain date, recovery could be had of interest accrued and unpaid before that date, under bill praying that account be taken and defendants ordered to pay whatever sum may appear due, and for other and further relief. Miller v. Paul, 1925, 237 Ill.App. 166. 73. ---- Stockholders Alien Property Custodian's seizure of stock in a private

corporation vests in him the rights of a stockholder, and nothing more. Sutherland v. Selling, C.C.A.9 (Or.) 1926, 16 F.2d 865, certiorari denied 47 S.Ct. 475, 273 U.S. 760, 71 L.Ed. 878. 74. ---- Patent licenses Patent licensing agreement, which was between German patent holder and American licensee, and which gave licensee an exclusive license in a certain territory and first option upon any new invention or improvement patent holder might make in future in certain field, was not illegal or unenforcible, and therefore, United States Attorney General, as successor to Alien Property Custodian, unlawfully exercised control and dominion over licensee's rights under licensing agreement in granting of licensing agreements to others in derogation of licensee's exclusive right. Brownell v. Ketcham Wire & Mfg. Co., C.A.9 (Wash.) 1954, 211 F.2d 121, 100 U.S.P.Q. 338. *161574 75. ---- Partnership interests Under section 1 et seq. of this Appendix right of Custodian to commissions due a German copartnership under insurance contracts includes obligations for payment of money which might become due at later date, even though never in fact paid. Mutzenbecher v. Ballard, D.C.N.Y.1925, 16 F.2d 173, affirmed 16 F.2d 174, certiorari denied 47 S.Ct. 571, 273 U.S. 766, 71 L.Ed. 881. Where Alien Property Custodian seized share in firm of enemy partner who owned entire capital thereof, Custodian acquired all assets of firm including choses in action and remaining members were divested of right, if any, with respect to property so taken including alleged partnership claim against other enemy property seized by the Custodian. Sorenson v. Sutherland, S.D.N.Y.1939, 27 F.Supp. 44, reversed on other grounds 109 F.2d 714, certiorari granted 60 S.Ct. 1103, 310 U.S. 621, 84 L.Ed. 1394, affirmed 61 S.Ct. 326, 311 U.S. 494, 85 L.Ed. 297. 76. ---- Rights of nonenemies

Where property of German subject, joining German army during World War, was seized under this section rights of his wife, residing in United States and not having been proclaimed by President as an enemy of United States, did not fall within class of persons whose property was subject to confiscation and whatever rights she had in the property were not confiscated by seizure. Von Schwerdtner v. Piper, D.C.Md.1928, 23 F.2d 862. 77. ---- Trademarks Where Alien Property Custodian's seizures related only to trademark in gross, he acquired no rights of property in mark entitling him to exclude its use by others; and he acquired by such seizures no right to prevent use of mark by others in United States unless and until he had established his ownership rights in mark through use in a United States business. Rogers v. Ercona Camera Corp., C.A.D.C.1960, 277 F.2d 94, 107 U.S.App.D.C. 295, 124 U.S.P.Q. 489. 78. ---- Trusts Where by terms of inter vivos trust created by Japanese national beneficiary thereof became entitled to corpus on attaining stated age, vesting order issued by Attorney General as successor of Alien Property Custodian vested in Attorney General all beneficiary's right, title and interest in and to the corpus and income of the trust to the extent that it was located within the United States. In re Toshizo Huga's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 1004. *161575 The seizure of beneficial interests of all Japanese national beneficiaries to inter vivos trust created by Japanese national by means of issuing a vesting order under § 1 et seq. of this Appendix did not give Attorney General right to corpus of trust. In re Masayo Huga's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 987. 79. Transfer as discharge from liability

Where during the war, defendant, a bank in Pittsburgh, made a voluntary statement to the Alien Property Custodian of its indebtedness to plaintiff, a bank in Vienna, and delivered to him bonds covering the same but under agreement that title should not pass until it ascertained the amount of its credit with plaintiff, which might be set off, and then only to the excess above that amount; the remaining bonds to be returned, which agreement was carried out and the amount so ascertained paid back, and, after termination of the war, by agreement and in accordance with the law of Austria, defendant's account with plaintiff was closed out and the amount due defendant placed in special deposit subject to its order, this transaction operated as payment of plaintiff's indebtedness to defendant, that defendant was discharged from its debt to plaintiff only to the extent of the amount finally retained by the Custodian, and that a right of action existed against it for the part of the deposit which was returned. Anglo Oesterreichische Bank v. First Nat Bank of Pittsburgh, D.C.Pa.1928, 24 F.2d 119. Under this section, American trustee for German insurance company, which turned over to Alien Property Custodian securities held for benefit of policy holders and creditors, was discharged from liability. Farmers' Loan & Trust Co. v. Hicks, C.C.A.2 (N.Y.) 1925, 9 F.2d 848, certiorari denied 46 S.Ct. 120, 269 U.S. 583, 70 L.Ed. 424. One turning over enemy property to Alien Property Custodian on his demand is fully protected. Garvan v. Commercial Trust Co. of New Jersey, D.C.N.J.1921, 275 F. 841, affirmed 281 F. 804, affirmed 43 S.Ct. 486, 262 U.S. 51, 67 L.Ed. 858. A bank, which pays a deposit to the Alien Property Custodian on the latter's demand, is protected against liability to the depositor by subsec. (e) of this section. American Exchange Nat. Bank v. Garvan, C.C.A.2 (N.Y.) 1921, 273 F. 43, affirmed 43 S.Ct. 165, 260 U.S. 706, 67 L.Ed. 474. Where an insurer paid over the proceeds of a life policy to the Alien Property Custodian, pursuant to a demand under § 1 et seq. of

this Appendix, such payment under subsec. (e) of this section, was a bar to any action against the insurance company, though the beneficiary was not an enemy alien. Wageck v. Travelers' Ins. Co., N.Y.Sup.1919, 177 N.Y.S. 327, 108 Misc. 65. *161576 80. Termination of hostilities--Generally Custodian's right to seize enemy-acquired property, under subsec. (c) of this section, ceased on declaration of peace with Germany by Congressional resolution on July 2, 1921, 42 Stat. 105. In re Sutherland, C.C.A.2 (N.Y.) 1928, 23 F.2d 595. Under this section Alien Property Custodian, after resolution declaring end of war, was not entitled to recover amount of bank deposit held to credit of former enemy alien, but not reported through an honest error. Sutherland v. Guaranty Trust Co. of New York, C.C.A.2 (N.Y.) 1926, 11 F.2d 696. Joint resolution declaring war's end did not preclude Alien Property Custodian from compelling issuance to him of certificates representing stock previously seized. Hicks v. Baltimore & O. R. Co., D.C.Md.1926, 10 F.2d 606. Termination of war did not require Alien Property Custodian to return securities deposited by German insurance company with American trustee. Farmers' Loan & Trust Co. v. Hicks, C.C.A.2 (N.Y.) 1925, 9 F.2d 848, certiorari denied 46 S.Ct. 120, 269 U.S. 583, 70 L.Ed. 424. Joint Resolution July 2, 1921, declaring the state of war theretofore existing between Germany and the United States to be ended, did not invalidate seizures theretofore made, but under § 5 expressly declared that all such property shall be retained by the United States. Application of Miller, C.C.A.2 (N.Y.) 1923, 288 F. 760. The Alien Property Custodian had the right to seize property of

enemy aliens after the Armistice of November 11, 1918, was entered into, and before July 2, 1921, when the war was declared at end by the joint resolution of Congress, approved and signed by the President. In re Miller, C.C.A.2 (N.Y.) 1922, 281 F. 764, appeal dismissed 43 S.Ct. 519, 262 U.S. 760, 67 L.Ed. 1220. The joint resolution of July 2, 1921, terminating the war with Germany and Austria-Hungary, did not affect the right of the Alien Property Custodian to take and hold property. Miller v. Camp, S.D.Fla.1922, 280 F. 520, affirmed 286 F. 525. *161577 The fact that hostilities have ceased does not affect the statutory powers of Alien Property Custodian or the constitutional validity of § 1 et seq. of this Appendix which grant those powers. In re Yokohama Specie Bank, N.Y.Sup.1946, 66 N.Y.S.2d 289, 188 Misc. 137. Alien Property Custodian's right to the interest of alien enemies in trust property, under this section and the executive orders thereunder, did not terminate on July 2, 1921, in view of the peace resolution of Congress. In re Bendit's Will, N.Y.A.D. 1 Dept.1925, 212 N.Y.S. 526, 214 A.D. 446. By implication, Joint Resolution, terminating state of war between United States and Germany and providing that German property which had been vested, or which, before January 1, 1947, was subject to vesting, would retain its prior status in that respect, terminated power of Attorney General to vest property which was not subject to vesting prior to that date; and, subject to certain exceptions, Joint Resolution and General License, releasing property previously blocked, brought to an end public policy preventing former enemies from holding assets in United States, and, therefore, after date of General License, public had no interest in withholding property from German beneficiaries which would entitle Attorney General to appeal in public interest from judgment that inter vivos trust income and corpus becoming distributable on or after date of General License were payable to beneficiaries, including German beneficiaries, according to

trust instrument. Security-First Nat. Bank of L. A. v. Rogers, Cal.1958, 330 P.2d 811, 51 Cal.2d 24. 81. ---- Time of demand Demand for property by Alien Property Custodian, served after formal termination of war, was ineffective. Matheson v. Hicks, D.C.N.Y.1926, 10 F.2d 872. Under this section, the Alien Property Custodian was entitled to demand payment to him of legacies which had vested in alien enemy legatees prior to the peace resolution of July 2, 1921, though the payment of moneys to such legatees by operation of the will and its provisions was postponed until subsequent to that date. Application of Miller, C.C.A.2 (N.Y.) 1923, 288 F. 760. Where before the war was formally ended by resolution of Congress on July 2, 1921, Alien Property Custodian demanded the surrender of property of enemy aliens under § 1 et seq. of this Appendix, his right to possession of the property demanded was enforceable after such date. In re Miller, C.C.A.2 (N.Y.) 1922, 281 F. 764, appeal dismissed 43 S.Ct. 519, 262 U.S. 760, 67 L.Ed. 1220. *161578 A demand for property, signed before, but not served until after, the declaration of peace with Germany, July 2, 1921, was ineffective to vest title to the property in the Custodian. Miller v. Rouse, S.D.N.Y.1921, 276 F. 715. IV. SEIZURE OF PROPERTY--PARTICULAR PROPERTY < Subdivision Index > Generally 101 Bequests Bequests - Generally 102 Bequests - Renunciation 103 Bequests - Testamentary provisions 104

Compensation awards 105 Constructive trust 121 Contingent interests 106 Copyrights 107 Corporate property Corporate property - Generally 108 Corporate property - Issuance of new certificates 109 Corporate property - Piercing the corporate veil 110 Corporate property - Stock 111 Credits 112 Debts 113 Issuance of new certificates, corporate property 109 Judgments 114 Licenses 115 Maintenance and support 116 Patents 117 Piercing the corporate veil, corporate property 110 Real property 118 Renunciation Renunciation - Bequests 103 Renunciation - Trusts 122 Stock, corporate property 111 Support 116 Testamentary provisions, bequests 104 Trademarks 119 Trust provisions 123 Trusts Trusts - Generally 120 Trusts - Constructive trust 121 Trusts - Renunciation 122 Trusts - Trust provisions 123 101. Generally Congress intended, when enacting § 1 et seq. of this Appendix, that the President should cause property of every kind belonging to an alien enemy, tangible or intangible, to be seized. Garvan v. Marconi

Wireless Telegraph Co. of America, D.C.N.J.1921, 275 F. 486. *161579 The scope of the power to vest alien property under § 1 et seq. of this Appendix is not limited to property useful as war industries. Kaku Nagano v. Clark, D.C.Ill.1950, 88 F.Supp. 897, reversed on other grounds 187 F.2d 759, certiorari granted 72 S.Ct. 47, 342 U.S. 809, 96 L.Ed. 611, affirmed 72 S.Ct. 363, 342 U.S. 916, 96 L.Ed. 685. All alien enemy property in the United States during the war, including choses in action as well as tangible property, is subject to seizure and confiscation when so directed by Congress, as in § 1 et seq. of this Appendix. Streb v. Chatham & Phenix Nat. Bank of the City of New York, N.Y.Sup.1919, 178 N.Y.S. 309, 108 Misc. 368. Property which is subject to seizure or restrictions as to transfer under this section, includes every kind of property, whether or not useful to war industries and equitable as well as legal interests are included. In re Schneider's Estate, Cal.App. 2 Dist.1956, 296 P.2d 45, 140 Cal.App.2d 710, appeal dismissed 77 S.Ct. 263, 352 U.S. 938, 1 L.Ed.2d 235. 102. Bequests--Generally If a will created a present gift to enemy aliens with only dates of payment being bypassed or postponed, entire interest of the aliens was indefeasibly vested at the death of restator, and could be properly seized by the Alien Property Custodian. Kammholz v. Allen, C.A.2 (N.Y.) 1958, 256 F.2d 437. Where gift to class of residents of Germany failed because of violation of rule against perpetuities, bequest passed under residuary clause of will, and there was thus no vesting of any estate in an alien enemy which would render it subject to seizure under § 1 et seq. of this Appendix. Brownell v. Edmunds, C.A.4 1953, 209 F.2d 349. Where the estate of an alien enemy who had died before war

was declared had not yet been settled and the property had not come into the possession of the heirs, the Alien Property Custodian had authority to seize it. Miller v. Schutte, App.D.C.1923, 287 F. 604, 52 App.D.C. 359, dismissed 44 S.Ct. 7, 263 U.S. 730, 68 L.Ed. 529. Where a bequest to an alien enemy fails and the property devolves on the next of kin who are not alien enemies, the Alien Property Custodian has no claim thereto. Raque v. City of Speyer, Germany, N.J.Ch.1925, 129 A. 207, 97 N.J. Eq. 447. Though testatrix died after war had been declared between the United States and the German Empire and when § 1 et seq. of this Appendix was in force, a devise and bequest of one-third of testatrix's estate to a daughter who was an alien enemy was not void so that the property would pass to the residuary legatees and devisees, and the Alien Property Custodian, and not the residuary legatees and devisees, was entitled to said daughter's share. In re Gregg's Estate., Pa.1920, 109 A. 777, 266 Pa. 189, certiorari denied 40 S.Ct. 396, 252 U.S. 588, 64 L.Ed. 730. *161580 Title to assets in estate of decedent who was killed in 1942 when § 1 et seq. of this Appendix was in effect and whose surviving heirs were then nationals of nation at war with United States vested in heirs as of date of the death and immediately became subject to vesting in Attorney General of the United States, notwithstanding fact that administrator held qualified title to the estate to pay debts and expenses of administration. In re Mokros' Estate, Minn.1964, 130 N.W.2d 121, 268 Minn. 438. Possession by testator's heirs of property willed to alien enemies does not give heirs right thereto. In re Shafer's Estate, S.D.1926, 209 N.W. 355, 50 S.D. 232, adhered to on rehearing 216 N.W. 948, 52 S.D. 182. Under will of testatrix making bequests to German nationals in trust which never came into existence because conditions prescribed for its termination came into existence before death of testatrix,

legacies so bequeathed by the testatrix vested in the designated beneficiaries so that the Alien Property Custodian was authorized by this section to seize them. In re Schneider's Estate, Cal.App. 2 Dist.1956, 296 P.2d 45, 140 Cal.App.2d 710, appeal dismissed 77 S.Ct. 263, 352 U.S. 938, 1 L.Ed.2d 235. 103. ---- Renunciation Right of residents of part of Germany occupied by armed forces of the United States, to receive bequests under will of New York testator, constituted "personalty", and those residents of Germany, could not rid themselves of their legacies except by their own affirmative act, and instruments whereby they attempted to renounce bequests were in violation of military government laws prohibiting any transaction involving foreign exchange assets, and hence Attorney General of the United States, as successor to Alien Property Custodian, was entitled to the bequests. In re Muller's Estate, N.Y.Sur.1951, 104 N.Y.S.2d 133, 199 Misc. 745. 104. ---- Testamentary provisions Where attempted bequest to class of German nationals was not to vest until legal termination of the war, and in only those members of class which survived the war, bequest, if valid, was not subject to seizure under § 1 et seq. of this Appendix in view of provision subjecting to seizure only property belonging to or held for, by, on account of, or on behalf of an enemy national, since no property was vested in them or was held for their benefit so long as the war continued and their country remained an enemy country. Brownell v. Edmunds, C.A.4 1953, 209 F.2d 349. Under New York law, under will which bequeathed to individual stock in corporation upon condition that he make payments to then enemy aliens to commence and become due and payable only as, if and when, by act of Congress and/or by proclamation of President, direct payment to aliens was permitted, aliens had an interest which was capable of seizure and sequestration by Alien

Property Custodian pursuant to § 1 et seq. of this Appendix. Kammholz v. Allen, S.D.N.Y.1957, 155 F.Supp. 511, affirmed 256 F.2d 437. *161581 Under a bequest to German legatees "should they survive this war", testatrix' intention was to make the bequest on a condition precedent and that if no beneficiary should survive, the bequest would lapse and become a part of the residuary estate, and hence though the Alien Property Custodian was entitled to all the interest of all the beneficiaries, he was not entitled to the fund or any part of it until termination of the war at which time it could be determined whether the interests which the Custodian seized would be entitled to the fund or not. Clark v. Edmunds, W.D.Va.1947, 73 F.Supp. 390. Where will provided that legacies to German residents should be revoked if, at time of testator's death, there was in effect a law prohibiting transfer of legacies to Germany, and at time of testator's death, regulations prohibited transfer of any property to residents of Germany, legacies were revoked as to those legatees actually residents in Germany at such time. In re Irving Trust Co., N.Y.Sur.1945, 57 N.Y.S.2d 745, 185 Misc. 866. It would be against public policy to sanction circumvention of intent of Congress by deferring payment to enemy aliens until such payment once again became legal; but it would not be against public policy to avoid confiscation by providing that, if gift to alien failed, gift over was made to alternate legatee who was not barred from taking by virtue of this chapter. Security-First Nat. Bank of L. A. v. Rogers, Cal.1958, 330 P.2d 811, 51 Cal.2d 24. Where will bequeathed residue to trustee for benefit of two German nationals, subject to executor's right to sell residue during administration in which event testatrix gave all proceeds to such German nationals "share and share alike if they both survived distribution" at testatrix' death nationals had a contingent future interest which was subject to seizure under subsec. (c) of this section.

In re Zuber's Estate, Cal.App. 2 Dist.1956, 304 P.2d 247, 146 Cal.App.2d 584. 105. Compensation awards The moment vesting of award under M.S.A. § 176.01 et seq. in favor of alien takes place, Alien Property Custodian steps into shoes of alien beneficiary of compensation award and thereby acquires exclusive possession of all rights of original owner without impairment or change, and rights so acquired by Custodian are not limited to duration of war and are not terminated by any subsequent declaration of peace. Todeva v. Oliver Iron Min. Co., Minn.1951, 45 N.W.2d 782, 232 Minn. 422. Award of compensation for death of unnaturalized native of Hungary was properly ordered paid to Alien Property Custodian pending necessary legislation contemplated in § 5 of Treaty of Peace with Hungary, 42 Stat. 1952, and circuit court erred in ordering payments to be paid to its master commissioner as quasi receiver. Maryland Casualty Co. v. Chamos, Ky.1924, 263 S.W. 370, 203 Ky. 820. *161582 106. Contingent interests Under New York law, where will bequeathed certain stock to an individual upon condition that he make payments to enemy aliens to commence and become due and payable only as, if and when, by act of Congress and/or by proclamation of the President, direct payment to such aliens was permitted, if will did not create a present gift to aliens with only dates of payments being bypassed or postponed, aliens, at testator's death, had contingent future interests which were properly seized by the Alien Property Custodian. Kammholz v. Allen, C.A.2 (N.Y.) 1958, 256 F.2d 437. Under McKinney's N.Y. Real Property Law, § 59, a contingent or expectant estate of German remainderman was interest in real property subject to seizure by Alien Property Custodian, even if it did

not become payable until death of life tenant, which occurred after declaration of peace with Germany. In re Bendheim's Estate, N.Y.Sur.1924, 209 N.Y.S. 141, 124 Misc. 424, affirmed 209 N.Y.S. 794, 214 A.D. 716. 107. Copyrights Alien Property Custodian was authorized to seize and sell properties such as patents, trade-marks, and copyrights. AktienGesellschaft Für Feinmechanik, Vormals Jetter & Scheerer, v. KnyScheerer Corporation, Cust. & Pat.App.1935, 75 F.2d 638, 22 C.C.P.A. 979. 108. Corporate property--Generally Under this section, providing, for seizure of property belonging to "enemy" or "ally of enemy," Custodian could not seize property of foreign corporation organized under laws of nonenemy nation, and doing no business in enemy territory, but with stock owned principally by enemies, in view of § 2 of this Appendix, defining "enemy" and "ally of enemy." Behn, Meyer & Co. v. Miller, U.S.Dist.Col.1925, 45 S.Ct. 165, 266 U.S. 457, 69 L.Ed. 374. Under 1941 amendments to § 1 et seq. of this Appendix, German stockholders of Costa Rican business enterprise did not automatically acquire severable interest in company's assets in New York proportionate to their shareholdings so as to render such interest subject to vesting at any time up to December 31, 1946 and so as to remain subject to vesting until termination of entire vesting program in 1953, where President did not direct that proportionate interest of enemy stockholders in assets of nonenemy corporation could be deemed their own property subject to separate vesting and seizure. Gmo. Niehaus & Co. v. U. S., Ct.Cl.1967, 373 F.2d 944, 179 Ct.Cl. 232. *161583 Under § 1 et seq. of this Appendix the property of all domestic corporations is characterized as nonenemy and not

subject to seizure, although all stock of corporation is enemy-owned. Knitting Mach. Corp. v. Hayward Hosiery Co., D.C.Mass.1950, 95 F.Supp. 510, 88 U.S.P.Q. 61. 109. ---- Issuance of new certificates Authority to the Alien Property Custodian to vest in himself and to sell the property of foreign nationals included the power to require domestic corporation to issue new certificates for shares owned or held by foreign nationals. Silesian Am. Corp. v. Clark, U.S.N.Y.1947, 68 S.Ct. 179, 332 U.S. 469, 92 L.Ed. 81. This section, as amended by Act Nov. 4, 1918, § 1 (40 Stat. 1020), requiring corporation to issue new certificates whenever Custodian demanded shares of alien enemy, necessarily removed condition in § 12 of this Appendix, requiring transfer to Custodian only when old certificates were surrendered. Great Northern Ry. Co. v. Sutherland, U.S.N.Y.1927, 47 S.Ct. 315, 273 U.S. 182, 71 L.Ed. 596. Where husband who controlled family corporation, had certificate representing shares to which he was entitled by stock dividend issued in name of his wife, but certificate was never actually delivered to wife and she, in fact, had no knowledge of its existence, registration of stock and issuance of certificate in wife's name had effect only of promise to transfer and was not a completed gift, and promise to transfer was enforceable, if at all, by wife, and not by Alien Property Custodian who vested shares of which wife was record owner pursuant to this section. Shinsaku Nagano v. McGrath, C.A.7 (Ill.) 1951, 187 F.2d 753. Alien Property Custodian's determination, under subsecs. (a), (c), and (d) of this section, that stock is owned by alien enemy, is sufficiently final to require corporation to cancel such stock and issue certificates in lieu thereof to custodian, whether decision is right or wrong; all rights and equities of corporation remaining open for future proceedings under § 9 of this Appendix. In re Sutherland, C.C.A.2

(N.Y.) 1928, 23 F.2d 595. Alien Property Custodian may compel issuance to him of certificates representing stock seized without surrender of old certificates. Hicks v. Baltimore & O. R. Co., D.C.Md.1926, 10 F.2d 606. The Alien Property Custodian, in seizing corporate stock of alien enemy under§ 1 et seq. of this Appendix, could require the corporation to issue certificates to him without presenting for cancellation the outstanding certificates under § 12 of this Appendix and this section. Miller v. Kaliwerke Aschersleben AktienGesellschaft, C.C.A.2 (N.Y.) 1922, 283 F. 746. *161584 Subsec. (c) of this section requiring corporations under prescribed conditions to cancel outstanding certificates of stock and in lieu thereof issue certificates to the Alien Property Custodian, imposes an absolute duty, not dependent on the production and surrender of the outstanding certificates; but such transfer does not deprive any nonenemy claimant of vested rights, which may be established by proceeding under § 9 of this Appendix. Columbia Brewing Co. v. Miller, C.C.A.5 (La.) 1922, 281 F. 289. After the amendment of subsec. (c) of this section, a corporation could be required on demand of the Alien Property Custodian to issue new certificates of stock held by alien enemies without presentation of the outstanding certificates for cancellation; such act being a war measure, and Congress not intending that old certificates be presented for cancellation. Garvan v. Marconi Wireless Telegraph Co. of America, D.C.N.J.1921, 275 F. 486. 110. ---- Piercing the corporate veil Under § 1 et seq. of this Appendix fact that foreign corporation was organized in friendly or neutral nation does not conclusively determine that all interests in corporation must be treated as friendly or neutral, but on contrary corporate veil can be pierced and "enemy

taint" found if there are some enemy officers or stockholders, and presence of some nonenemy stockholders does not prevent seizure of all corporate assets. Kaufman v. Societe Internationale Pour Participations Industrielles Et Commerciales, S.A., U.S.Dist.Col.1952, 72 S.Ct. 611, 343 U.S. 156, 96 L.Ed. 853. Though corporation was created under laws of friendly power and was to be treated as friendly alien, it was proper for Alien Property Custodian to pierce corporate veil and seize portion of its property corresponding to percentage of stock ownership by alien enemies, thus freeing remainder of corporate property from "enemy taint". U.S. v. Algemene Kunstzijde Unie, N.V., C.A.4 (N.C.) 1955, 226 F.2d 115, certiorari denied 76 S.Ct. 433, 350 U.S. 969, 100 L.Ed. 841. 111. ---- Stock A transfer of shares of stock seized by the Alien Property Custodian to his name is but an incident of an effective seizure, and, if a return of the shares to a claimant not an enemy is ordered, a retransfer follows as of course. Stoehr v. Wallace, U.S.N.Y.1921, 41 S.Ct. 293, 255 U.S. 239, 65 L.Ed. 604. Where transfer of corporate stock from alien enemy owners to estate of American citizen was fictitious, beneficial ownership remained in the alien enemy owners and was therefore subject to seizure by the United States. Kind v. Clark, C.C.A.2 (N.Y.) 1947, 161 F.2d 36, certiorari denied 68 S.Ct. 107, 332 U.S. 808, 92 L.Ed. 385, certiorari denied 68 S.Ct. 108, 332 U.S. 808, 92 L.Ed. 385. *161585 While corporation is not estopped to test validity or lawful issue of stock to alien enemy, in proceeding under § 9 of this Appendix for allowance of claims to property delivered to Alien Property Custodian, corporation reporting such stock cannot retain it after determination of such ownership, and demand for its delivery, by such Custodian under subsecs. (a), (c), and (d) of this section. In re Sutherland, C.C.A.2 (N.Y.) 1928, 23 F.2d 595.

Where corporate stock of American railroad owned by German subjects was sold to subjects and residents of the kingdom of the Netherlands after declaration of war between the United States and Germany, and transfer made by indorsement in blank of certificates registered in name of German subjects, subsequent seizure of such stock by Alien Property Custodian, under subsec. (b) of this section, was valid; the attempted assignment being ineffective as against such seizure. Schrijver v. Sutherland, App.D.C.1927, 19 F.2d 688, 57 App.D.C. 214, certiorari denied 48 S.Ct. 84, 275 U.S. 546, 72 L.Ed. 418. Shares of stock in an American corporation are not subject to seizure under subsec. (b) of this section because a transfer thereof by a German citizen to a Swiss citizen was made within enemy territory after diplomatic relations had been terminated and when war was imminent, where title passed before the declaration of war. Magg v. Miller, App.D.C.1924, 296 F. 973, 54 App.D.C. 226. Under subsecs. (a) and (c) of this section, the Alien Property Custodian was entitled to seize corporate stock standing on the books of an American corporation in the name of an enemy. Miller v. Kaliwerke Aschersleben Aktien-Gesellschaft, C.C.A.2 (N.Y.) 1922, 283 F. 746. That third persons might have claims upon or on interest in corporate stock, ownership of which was determined to be in an alien enemy by the Alien Property Custodian, was no reason why the corporation should not transfer the stock to such officer upon his demand under § 1 et seq. of this Appendix, since § 9 of this Appendix provides an adequate remedy for the true owner and the corporation is completely protected by subsec. (e) of this section. Garvan v. Marconi Wireless Telegraph Co. of America, D.C.N.J.1921, 275 F. 486. Non-enemy stockholder of enemy domiciled corporation may have value of his stock out of assets of said corporation seized pursuant to § 9(a) of this Appendix. Taterka v. Brownell,

S.D.N.Y.1953, 117 F.Supp. 506. Seizure and sale by Alien Property Custodian of stock of enemy owned corporation, and reorganization of American Controlled Corporation to carry on business was valid and regular. Isenberg v. Sherman, Cal.1931, 298 P. 1004, 212 Cal. 454, rehearing denied 299 P. 528, 212 Cal. 454, motion to recall remittitur denied 7 P.2d 1006, 214 Cal. 722, certiorari denied 52 S.Ct. 501, 286 U.S. 547, 76 L.Ed. 1283. *161586 112. Credits Where Japanese national accepted credit on books of cotton merchant in satisfaction of a running account before the war between the United States and Japan the settlement was valid and the credit was properly seized under the vesting order May 27, 1947, as money owed by cotton merchant to such Japanese national. J. Kahn & Co. v. Clark, N.D.Tex.1949, 83 F.Supp. 229, affirmed 178 F.2d 111. 113. Debts The term "debt" in this section is not confined to causes for which the common-law action of debt might be maintained. Miller v. Robertson, U.S.N.Y.1924, 45 S.Ct. 73, 266 U.S. 243, 69 L.Ed. 265. Under this section President may require payment to him of debt owing to enemy. Guiness v. Miller, C.C.A.2 (N.Y.) 1924, 299 F. 538, certiorari granted 44 S.Ct. 639, 265 U.S. 579, 68 L.Ed. 1189, affirmed in part, reversed in part on other grounds 46 S.Ct. 46, 269 U.S. 71, 70 L.Ed. 168. The word "due" does not mean "matured" but signifies a simple indebtedness, without reference to the time of payment and this is the primary meaning of the word, and it was used in this sense in this section, Congress intending that the Alien Property Custodian should be given information as to all debts to alien enemies whether they had or had not matured. Rumely v. U.S., C.C.A.2 (N.Y.) 1923, 293 F.

532, certiorari denied 44 S.Ct. 38, 263 U.S. 713, 68 L.Ed. 520. A paper executed by an American citizen whereby he agreed to pay to his father, who was a German subject, interest on an amount representing the interest of the father in an American banking institution which had been previously transferred to the son in good faith, which paper was undelivered and was without consideration other than filial affection, did not create an indebtedness from the son to the father, nor make him trustee of any property for his father's benefit, and he was entitled under this section to recover back the securities which had been seized by the Alien Property Custodian as belonging to his father. Schall v. Miller, C.C.A.2 (N.Y.) 1922, 287 F. 502. *161587 Under this section, authorizing seizure of enemy property by the Alien Property Custodian, the Custodian has authority to seize a debt owing to an alien enemy not possessing a license from the President. American Exchange Nat. Bank v. Garvan, C.C.A.2 (N.Y.) 1921, 273 F. 43, affirmed 43 S.Ct. 165, 260 U.S. 706, 67 L.Ed. 474. Under subsec. (c) of this section, providing that, if the President shall so require, any money or property owing or belonging to an enemy shall be transferred or paid to the Alien Property Custodian, a debt due an enemy is included. Kohn v. Jacob & Josef Kohn, S.D.N.Y.1920, 264 F. 253. See, also, McGrath v. Agency of Chartered Bank of India, Australia & China, D.C.N.Y.1952, 104 F.Supp. 964, affirmed 201 F.2d 368. Where alien enemy was the owner of machines in the United States and defendant sold the machines to a third party, evidence established that the defendant was indebted in the amount of the purchase price of the machines less his commission on the effective date of the vesting order under § 1 et seq. of this Appendix and hence the Alien Property Custodian was entitled to be vested with the indebtedness. Rogers v. Hertlein, E.D.N.Y.1959, 172 F.Supp. 610.

Trust agreement between railroad and trustee providing for payment by trustee pro rata of amounts due on railroad's mortgage bearer bonds would not be amended to provide for payment to known holders of bonds of the pro rata shares of unknown holders of bonds, which had been sequestered by the Imperial German Government, on ground that such appropriation by an alien enemy terminated obligation of railroad to recognize the sequestered bonds as valid and outstanding, since, under § 1 et seq. of this Appendix debts owing to enemy aliens were not automatically canceled but were payable to the Alien Property Custodian. Mayer v. Chase Nat. Bank of City of New York, S.D.N.Y.1958, 165 F.Supp. 287. Under § 1 et seq. of this Appendix a debt is property which may be seized by appropriate federal authority under § 1 et seq. of this Appendix and, to determine existence of property in the government subject to seizure thereunder, book entries must be taken as equivalent of the fund represented thereby. Brownell v. Kermath Mfg. Co., E.D.Mich.1954, 120 F.Supp. 331, affirmed 222 F.2d 577, certiorari denied 76 S.Ct. 84, 350 U.S. 843, 100 L.Ed. 752. 114. Judgments Where Japanese aliens were not parties to action but were indirect beneficiaries of part of judgment recovered therein, any funds which might finally be paid upon such judgment could be covered under § 1 et seq. of this Appendix to prevent use against the United States or for giving aid or comfort to Empire of Japan during war between United States and Japan. The Ocean Gift, N.D.Cal.1942, 48 F.Supp. 625. *161588 115. Licenses Patent licensing agreement, which was between German patent holder and American licensee, and which gave licensee an exclusive license in a certain territory and first option upon any new invention or improvement patent holder might make in future in certain field, was not illegal or unenforcible, and, therefore, United States Attorney

General, as successor to Alien Property Custodian, unlawfully exercised control and dominion over licensee's rights under licensing agreement in granting of licensing agreements to others in derogation of licensee's exclusive right. Brownell v. Ketcham Wire & Mfg. Co., C.A.9 (Wash.) 1954, 211 F.2d 121, 100 U.S.P.Q. 338. 116. Maintenance and support Past-due installments owing to wife in Germany under separate maintenance decree of Washington court were subject to seizure by the United States under § 1 et seq. of this Appendix, over objection that wife's rights under decree were personal to her. McGrath v. Davis, Wash.1951, 236 P.2d 765, 39 Wash.2d 487. 117. Patents Alien Property Custodian's seizure of enemy-owned patents included accrued royalties, and enemy owners thereafter had no title to patent or royalties. Farbwerke Vormals Meister Lucius & Bruning v. Chemical Foundation, U.S.Del.1931, 51 S.Ct. 403, 283 U.S. 152, 75 L.Ed. 919. Where foreign inventor's attorney, after previous patent application had been barred, filed another invalid application which Alien Property Custodian attempted to seize, and inventor subsequently obtained patent on same invention by virtue of former § 80 of Title 35, extending rights under a foreign application, the Alien Property Custodian or his assignee acquired no property in the invention or in the subsequent patent, since the application seized was a nullity and inventor was not obliged to give the government something which it had not taken. Chemical Foundation v. General Aniline Works, C.C.A.3 (Del.) 1938, 99 F.2d 276, certiorari denied 59 S.Ct. 249, 305 U.S. 654, 83 L.Ed. 423. 118. Real property Real property and proceeds of sale of portions of real property

belonging to Japanese resident, national, and subject, who had made an ineffectual attempt to transfer property to one subsequently selling it, belonged to such Japanese national and was properly vested in Alien Property Custodian. Miyuki Okihara v. Clark, D.C.Hawai'i 1947, 71 F.Supp. 319. *161589 119. Trademarks Alien Property Custodian could not seize German source of supply of product which was subject of trademark; and where 1919 purported seizure of trademark and appurtenant business of marketing in states goods made in Germany occurred at time when, due to World War I, such products were not being marketed in United States, and purported 1921 seizure of trademark and business appurtenant thereto was not implemented by seizure of distributor's business or any of its assets, purported seizures of marketing business had no substance, and formal language in seizure demand form was ineffective to seize any business appurtenant to trademark. Rogers v. Ercona Camera Corp., C.A.D.C.1960, 277 F.2d 94, 107 U.S.App.D.C. 295, 124 U.S.P.Q. 489. 120. Trusts--Generally Where Russian Insurance Company when prohibited from having business relation with agents in Germany during the war between Russia and Germany by Russian ukase, made colorable transfer of agency to agents' subagent in United States with the secret understanding that a portion of the commissions was to be placed in certain account for benefit of agents, the fund so set apart, though transferred by subagent to insurance company's trustee with which company had deposited money and securities as condition to right to do business in state, was subject to seizure as property of German agents by Alien Property Custodian under subsecs. (a), (c) and (e) of this section and did not belong to the company on theory that German agents had no legal right to transact business for the company because of such ukase. Second Russian Ins. Co. v. Miller, U.S.N.Y.1925, 45 S.Ct. 593, 268 U.S. 552, 69 L.Ed. 1088.

Alien Property Custodian was entitled on demand to possession of securities deposited by German insurance company with American trustee to secure policy holders and creditors. Farmers' Loan & Trust Co. v. Hicks, C.C.A.2 (N.Y.) 1925, 9 F.2d 848, certiorari denied 46 S.Ct. 120, 269 U.S. 583, 70 L.Ed. 424. Where a trust company held securities under a trust agreement for the joint account of a neutral and alien enemy, it being in one aspect under the sole control of the alien enemy as to its withdrawal, possession, and disposition, it was properly regarded in the initial proceeding as enemy-owned property, liable to seizure by the Alien Property Custodian under § 1 et seq. of this Appendix and neither for itself as trustee nor for either cestui que trust was the trust company justified in withholding delivery of the property. Commercial Trust Co. of New Jersey v. Miller, C.C.A.3 (N.J.) 1922, 281 F. 804, affirmed 43 S.Ct. 486, 262 U.S. 51, 67 L.Ed. 858. *161590 Trustees, with whom German insurance companies, doing business in this country before the war, deposited securities as required by state laws for the protection of American policy holders and creditors, are not mere "lienholders," within the meaning of § 8 of this Appendix, but trustees of an active trust, and under subsec. (c) of this section hence Alien Property Custodian is entitled to possession of such securities; the rights of policy holders and creditors being fully protected by § 1 et seq. of this Appendix. Garvan v. $20,000 Bonds, C.C.A.2 (N.Y.) 1920, 265 F. 477, affirmed 41 S.Ct. 214, 254 U.S. 554, 65 L.Ed. 403. Under subsecs. (a), (c), and (d) of this section, the equitable interests of enemies in a trust fund in personal property may be captured. Kahn v. Garvan, S.D.N.Y.1920, 263 F. 909. Beneficial interest of beneficiaries in a spendthrift trust as enemy aliens would be subject to confiscation by the Alien Property Custodian since public policy in favor of effective governmental administration overrides policy of permitting benefits of property to be

transferred free of attendant D.C.N.D.1957, 149 F.Supp. 98.

burdens.

Brownell

v.

Leutz,

The right of Alien Property Custodian to seize trust property is not affected by the fact that before the war the alien enemy beneficiaries had executed powers of attorneys to certain bankers authorizing them to receive and receipt for such sums as might be distributed to them by the trustees, for if the principals are barred by this section from the present receipt of such moneys, their attorneys in fact are equally barred. Keppelmann v. Palmer, N.J.Err. & App.1919, 108 A. 432, 91 N.J. Eq. 67, certiorari denied 40 S.Ct. 392, 252 U.S. 581, 64 L.Ed. 727. Where testamentary trust was for primary benefit of testator's daughter, a German national and resident, Alien Property Custodian was entitled to accumulated income in hands of trustees on date of vesting order notwithstanding that beneficiary had previously directed trustees to pay entire trust income to beneficiary's daughter who was a naturalized citizen of the United States. In re Dieudonne's Estate, N.Y.Sur.1945, 53 N.Y.S.2d 56, 186 Misc. 642. The collusion of a life beneficiary, who was an alien enemy, in the unlawful accumulation by trustees of income, cannot affect the rights of the Alien Property Custodian, in whom the property was vested by this section and § 9 of this Appendix, and the President's order. In re Schaefer's Estate, N.Y.Sur.1920, 182 N.Y.S. 732, 112 Misc. 308. Where German defendants, on death of their mother in 1941, not only became entitled to income from testamentary trust share in which mother had life estate but also came into possession and enjoyment, subject to trust, of an equitable but vested fee in enumerated percentages of mother's share, defendants' interest in estate was properly vested by Attorney General in 1940, notwithstanding that last surviving life beneficiary did not die until 1951 and that trust continued until that time. Orme v. Northern Trust Co., Ill.1962, 183 N.E.2d 505, 25 Ill.2d 151, certiorari denied 83 S.Ct. 308, 371 U.S.

935, 9 L.Ed.2d 271. *161591 Where accomplishment of purpose of trust became impossible because Attorney General of United States had vested right and interest of enemy beneficiaries of trust, trust was terminated and was required to be transferred in accordance with terms of vesting order. In re Zuber's Estate, Cal.App. 2 Dist.1956, 304 P.2d 247, 146 Cal.App.2d 584. 121. ---- Constructive trust Where testatrix devised property to legatee who had agreed to use property for benefit of or to turn property over to named individual or her children, and the legatee died without exercising his powers, the legatee's executrix would hold the legacies affected by the agreement on a constructive trust for the Alien Property Custodian, who by vesting orders had become successor in interest of the beneficial owners. In re Christ's Church of the Golden Rule, N.D.Cal.1948, 79 F.Supp. 46, appeal dismissed 172 F.2d 523. 122. ---- Renunciation Where an American citizen in 1917 made a declaration of trust in favor of alien enemies who did not learn thereof until 1922, the seizure of the property did not deprive them of their right to renounce the trust, and it was immaterial that they renounced to defeat the seizure, if such was the fact, as they owed no duty to the United States. Stoehr v. Miller, C.C.A.2 (N.Y.) 1923, 296 F. 414. 123. ---- Trust provisions Where a trust company held securities under a trust agreement "for the joint account" of W. and S. and was obligated to pay over such securities and interest "to either the said" W. or S., or "to the survivor of them," the trust company, on demand for the property by the Alien Property Custodian under § 1 et seq. of this Appendix could not base a defense on the claim that S., who alone had been

determined to be an alien enemy not holding a license from the President, owned at most but a part of the property, as it was bound to deliver the property to either W. or S. on demand, so that, if either was an enemy the Alien Property Custodian, by taking the requisite steps under § 1 et seq. of this Appendix would be substituted in the place of the enemy and entitled to demand and recover the trust fund. Garvan v. Commercial Trust Co. of New Jersey, D.C.N.J.1921, 275 F. 841, affirmed 281 F. 804, affirmed 43 S.Ct. 486, 262 U.S. 51, 67 L.Ed. 858. Where trust instrument gave beneficiaries income of property until they reached 25, and then the principal, and provided that "in the event of the death of any child * * * before receiving its share of the principal * * * leaving child or children surviving, the share of such parent shall * * * be paid over to the descendants of such deceased child", and the beneficiaries reached age of 25 in 1948, 1951, and 1953, the interest which beneficiaries had in 1942 were subject to vesting under this section since uncertainty as to ultimate enjoyment of property does not render it immune from seizure. Von Bredow v. U. S., Ct.Cl.1959, 169 F.Supp. 256, 144 Ct.Cl. 465. *161592 Will of decedent dying during World War II, creating trust, all proceeds of which were to be held for two residents of Germany until cessation of hostilities, unless they sooner died, properly construed, did not authorize vesting until beneficiaries could legally receive it and gave them no interest which Alien Property Custodian could seize. In re Paszotta's Trust, Ind.App.1961, 172 N.E.2d 904, 131 Ind.App. 604. Where beneficiaries of trust were German nationals, and by virtue of vesting order, all rights of such beneficiaries were vested in Attorney General of United States, as successor to Alien Property Custodian, but trust provided that in event trustee was "unable to distribute" any portion of trust property as directed, such portion should go to settlor's heirs at law, such portions would go to heirs rather than to Attorney General. Harvard Trust Co. v. Attorney General of U.S., Mass.1952, 106 N.E.2d 269, 329 Mass. 79.

Inter vivos trust requirement that interest of any beneficiary be paid to him "personally, solely and individually" would not be satisfied by payment to Attorney General under vesting order; and where vesting orders prevented payment to German beneficiaries in manner required by trust, gift over provisions of trust became operative, and rights of German beneficiaries were terminated. Security-First Nat. Bank of L. A. v. Rogers, Cal.1958, 330 P.2d 811, 51 Cal.2d 24. Under 1946 decree of distribution establishing testamentary trust for maximum period of ten years for benefit of United States nationals subject to change of beneficiaries in favor of German Nationals whenever latter were not prohibited by law from becoming beneficiaries, interests of secondary beneficiaries were from date of death of testator contingent property interests, which vested in Alien Property Custodian at time he issued his vesting order. In re Neumeister's Estate, Cal.App. 2 Dist.1956, 304 P.2d 67, 146 Cal.App.2d 290. V. SEIZURE OF PROPERTY--PROCEEDINGS RELATING TO SEIZURE < Subdivision Index > Acts constituting vesting order 153 Amendment of vesting order 154 Amount of recovery 173 Assignment of rights by custodian 161 Change of citizenship, demand for transfer 145 Conclusiveness of custodian's determinations 143 Costs and expenses of securing transfer 169 Demand for transfer Demand for transfer - Generally 144 Demand for transfer - Change of citizenship 145 *161593 Demand for transfer - Duty to surrender property 146 Demand for transfer - Effect 147

Demand for transfer - Parties on whom made 148 Demand for transfer - Sufficiency 149 Demand for transfer - Time of demand 150 Demand for transfer - Transfers without demand 151 Duty to surrender property, demand for transfer 146 Effect of Effect of - Demand for transfer 147 Effect of - Vesting order 156 Expenses of securing transfer 169 Hearing 142 Interest 168 Interpleader of custodian 166 Judicial review of vesting order 159 Jurisdiction of courts 164 Laches 170 Objections to vesting 167 Parties 165 Parties on whom demand for transfer made 148 Preliminary determination of enemy ownership 141 Remedies for return of property 172 Res judicata 171 Scope of vesting order 155 Service of notice of seizure 162 Specificity of vesting order 157 Sufficiency of demand for transfer 149 Summary proceedings for possession of property 163 Time of Time of - Demand for transfer 150 Time of - Vesting order 158 Transfers without demand for transfer 151 Turnover directive 160 Vesting order Vesting order - Generally 152 Vesting order - Acts constituting 153 Vesting order - Amendment 154 Vesting order - Effect 156 *161594 Vesting order - Judicial review 159

Vesting order - Scope 155 Vesting order - Specificity 157 Vesting order - Time of order 158 141. Preliminary determination of enemy ownership Under subsec. (c) of this section there must be an administrative determination that certain specific property is owned by or held for the benefit of an enemy or ally of an enemy as a prerequisite to the seizure of such property, either actual or symbolical, by demand. Hunter v. Central Union Trust Co. of New York, D.C.N.Y.1926, 17 F.2d 174. Under this section and §§ 5 and 6 of this Appendix, the Alien Property Custodian, as the representative of the President, has authority to determine, after investigation, whether property is held for or on behalf of an enemy, and to insist that such property be turned over to him, if held for an enemy. Garvan v. Commercial Trust Co. of New Jersey, D.C.N.J.1921, 275 F. 841, affirmed 281 F. 804, affirmed 43 S.Ct. 486, 262 U.S. 51, 67 L.Ed. 858. 142. Hearing Trustees of property belonging to alien enemy were not entitled to a judicial hearing before the Alien Property Custodian, before the latter has a right to the possession of the property. In re Miller, C.C.A.2 (N.Y.) 1922, 281 F. 764, appeal dismissed 43 S.Ct. 519, 262 U.S. 760, 67 L.Ed. 1220. 143. Conclusiveness of custodian's determinations Determination of Alien Property Custodian that stock issued to alien enemy corporation was enemy owned is conclusive on Custodian's application, under § 17 of this Appendix, for an order directing domestic corporation to cancel stock issued to alien enemy and to deliver new certificates to Custodian, notwithstanding enemy may not in fact be the lawful owner of the property seized; claimant's remedy being by petitioning for its return under § 9 of this Appendix

and on refusal by filing suit for its recovery. In re Sutherland, D.C.N.Y.1927, 21 F.2d 667, modified on other grounds 23 F.2d 595. *161595 Proceeding by Custodian to seize enemy property is purely possessory, and in such proceeding Custodian's determination that property is held by enemy is conclusive. Hicks v. Baltimore & O. R. Co., D.C.Md.1926, 10 F.2d 606. A determination by the Alien Property Custodian that a demand against an estate is a debt owing to an alien enemy is conclusive for the purpose of a proceeding to enforce his demand for the payment of such claim to him. Miller v. Rouse, S.D.N.Y.1921, 276 F. 715. See, also, Clark v. E. J. Lavino & Co., D.C.Pa.1947, 72 F.Supp. 497. In suit by Attorney General to confiscate the interest of aliens in the estate of deceased and in the trust created under his will, where vesting order was based upon a finding that alien was an enemy alien, for the purpose of the present action such finding was conclusive and could not properly be made an issue. Brownell v. Leutz, D.C.N.D.1957, 149 F.Supp. 98. In action against purchaser of land from the custodian for decree declaring that title to land remained in survivor of former title holders from whom it had been seized as alien property, prior finding of custodian that former title holders were enemy nationals at time of seizure was conclusive and such issue could not be retried. Ecker v. Atlantic Refining Co, D.C.Md.1954, 125 F.Supp. 605, affirmed 222 F.2d 618, certiorari denied 76 S.Ct. 84, 350 U.S. 847, 100 L.Ed. 754. A determination by the Alien Property Custodian, and by the Attorney General, as his successor, that certain properties are subject to seizure is conclusive, though after they have been seized, his right to continue to hold them may be raised in an administrative procedure provided for by § 32 of this Appendix, or in an action in the federal courts. Brownell v. Union & New Haven Trust Co., Conn.1956, 124 A.2d 901, 143 Conn. 662.

United States Attorney General's finding and determination that legacy of enemy national in the estate of decedent under decedent's will was enemy owned property was conclusive and binding on Surrogate's Court, requiring Surrogate's Court to direct payment of legacy to Attorney General. In re Woelfinger's Estate, N.Y.Sur.1948, 76 N.Y.S.2d 554, 191 Misc. 526. Determination of Alien Property Custodian, in turnover directives, served on Superintendent of Banks as liquidator of New York agency of Japanese bank, that funds held by superintendent represented obligations owing by bank to the obligors, but did not constitute trust funds in favor of bondholders, was conclusive upon bondholders, notwithstanding bondholders instituted actions against superintendent to determine bondholders' interest in these funds, prior to turnover directives before state court. In re Yokohama Specie Bank, N.Y.Sup.1946, 66 N.Y.S.2d 289, 188 Misc. 137. *161596 144. Demand for transfer--Generally Under subsec. (c) of this section, rules promulgated by the President providing for a demand by the Alien Property Custodian for the transfer to him of property belonging to enemies, and providing that such demand should forthwith vest in him such right or title as might be included in the demand, were valid, and such demand gave the Custodian a complete title. Kohn v. Jacob & Josef Kohn, S.D.N.Y.1920, 264 F. 253. 145. ---- Change of citizenship Where proper demands were made at various times in 1918 and 1919 upon executors which represented valid seizure under this section of alien enemies' interests in remainder, the fact that the remaindermen changed their citizenship, subsequently to the effective dates of the demands served on the executors, did not preclude government from collecting the remaindermen's interests. In re Littman's Estate, N.Y.Sur.1941, 28 N.Y.S.2d 458, 176 Misc. 679.

146. ---- Duty to surrender property Property owned by alien enemy must be transferred to Alien Property Custodian immediately on demand therefor, under subsecs. (a), (c), and (d) of this section, latter's power to receive such property, under amendment to subsection (c), by Act Nov. 4, 1918, being granted as legitimate means effectively to prosecute war. In re Sutherland, C.C.A.2 (N.Y.) 1928, 23 F.2d 595. Under this section, as amended Nov. 4, 1918, on demand of Alien Property Custodian for property on the ground that it belongs to alien enemy, possessor must immediately surrender property to Custodian, and Custodian may apply to District Court to compel obedience to his demand, leaving question of ownership for subsequent settlement by filing claim for return thereof under § 9 of this Appendix, which may be enforced by suit if not granted. In re Sutherland, D.C.N.Y.1927, 21 F.2d 667, modified on other grounds 23 F.2d 595. Subsec. (c) of this section makes mandatory delivery of property to the Alien Property Custodian on his demand and in a proceeding to enforce such demand his determination under authority delegated by the President cannot be controverted. In re Garvan, E.D.N.Y.1921, 270 F. 1002. *161597 Demand by Alien Property Custodian for transfer of property held by executors for benefit of alien enemy entitles him to possession thereof. Raque v. City of Speyer, Germany, N.J.Ch.1925, 129 A. 207, 97 N.J. Eq. 447. 147. ---- Effect Under section 5 of this Appendix, authorizing President to act through Custodian, and this section, giving Custodian right to seize enemy property, a demand by Custodian for securities deposited by German insurance companies establishes that the President had required the delivery thereof to the Custodian, as authorized by subsec.

(c) of this section, which makes out a case for enforcement of the demand by the courts under § 17 of this Appendix. Central Union Trust Co. of New York v. Garvan, U.S.N.Y.1921, 41 S.Ct. 214, 254 U.S. 554, 65 L.Ed. 403. Custodian's demand for interest of decedent's estate charged Custodian's depositary with notice of extent of seizure. Isenberg v. Trent Trust Co., C.C.A.9 (Hawai'i) 1928, 26 F.2d 609, adhered to on rehearing 31 F.2d 553, certiorari denied 49 S.Ct. 479, 279 U.S. 862, 73 L.Ed. 1001. A valid demand made by the Alien Property Custodian operated at once as a seizure of the property of alien enemies, notwithstanding the failure of executors or administrators in whose hands it was possessed to comply with the demand, and the rights of the Custodian in such property must be adjudged as of the date when the demands were made. Application of Miller, C.C.A.2 (N.Y.) 1923, 288 F. 760. Demands by the Alien Property Custodian for the surrendering of property of enemy aliens effected an immediate seizure of the property demanded under § 1 et seq. of this Appendix. In re Miller, C.C.A.2 (N.Y.) 1922, 281 F. 764, appeal dismissed 43 S.Ct. 519, 262 U.S. 760, 67 L.Ed. 1220. A demand by the Alien Property Custodian on the executors of an estate for a legacy as bequeathed to an alien enemy is not a determination by him that the legacy is presently payable, but merely substitutes him to the rights of the legatee, and does not entitle him to a summary order for its payment. Miller v. Rouse, S.D.N.Y.1921, 276 F. 715. A demand by the Alien Property Custodian upon a domestic corporation to transfer stock held by an alien enemy immediately vested in such officer title to the stock, outstanding certificates being merely evidence of the ownership of the stock, which had its situs in the United States where it was deemed to be held by the corporation for the benefit of the owner, in view of Rules 2(a) and 2(c),

promulgated by the President on February 26, 1918, under the authority of subsec. (a) of this section. Garvan v. Marconi Wireless Telegraph Co. of America, D.C.N.J.1921, 275 F. 486. *161598 Where the Alien Property Custodian demanded a transfer, by one holding securities in trust for enemies, of the right, title, and interest of the enemies, and did not assert a legal right to the securities themselves, the capture did not change the character of the enemies' right, and if such right was subject to an accounting the Custodian must submit to some judicial determination between himself and the trustee. Kahn v. Garvan, S.D.N.Y.1920, 263 F. 909. Demand by Alien Property Custodian for transfer of property bequeathed to alien enemy institutions is not binding on court in construing will, but it is court's duty to construe will and determine who are beneficiaries thereunder and where such bequests are void because of nonexistence of beneficiary, property should be distributed under statute. Raque v. City of Speyer, Germany, N.J.Ch.1925, 129 A. 207, 97 N.J. Eq. 447. The mere demand of Alien Property Custodian as President's delegate for property of deceased's estate as enemy owned is sufficient to give him status as person interested in estate with complete possession of legal and equitable rights of enemy beneficiary thereof. In re Sielcken's Estate, N.Y.Sur.1938, 3 N.Y.S.2d 793, 167 Misc. 327. Under § 1 et seq. of this Appendix, demand by Alien Property Custodian, making no mention of wife of alien enemy, barred her dower right, in view of R.S. § 1994 and Act March 2, 1907, c. 2534, § 4, 34 Stat. 1229 (repealed) and § 9, of Title 8, then in force, under which the wife was an alien enemy. Miller v. Lautenburg, N.Y.A.D. 1 Dept.1924, 205 N.Y.S. 214, 209 A.D. 608, affirmed 145 N.E. 907, 239 N.Y. 132. 148. ---- Parties on whom made Under former Surrogate's Court Act § 202, the executors of an

estate were the proper parties on whom the Alien Property Custodian should make demand in order to seize the rights of alien enemies in debts due to the estate and installments of interest on such debts which accrued subsequent to July 2, 1921, the date of the joint resolution of Congress declaring that a state of war no longer existed between Germany and this country. Application of Miller, C.C.A.2 (N.Y.) 1923, 288 F. 760. Execution of a lease by a resident as attorney in fact for owner, an alien enemy, within six months preceding demand, was such an exercise of right, power, or authority over property as to permit service of notice of demand on him, within Executive Order February 26, 1918, made pursuant to § 5(a) of this Appendix, in view of McKinney's Real Property Law, § 336. Miller v. Lautenburg, N.Y.A.D. 1 Dept.1924, 205 N.Y.S. 214, 209 A.D. 608, affirmed 145 N.E. 907, 239 N.Y. 132. *161599 149. ---- Sufficiency Demand by Alien Property Custodian for interest of alien enemy in stock, made during the war in accordance with § 12 of this Appendix, as amended by Act March 28, 1918, § 1 (40 Stat. 460), requiring corporations to transfer stock only when demand was accompanied by certificates, constituted a symbolic seizure of the shares, so as to create a legal basis for subsequent specific request for certificates after the war, pursuant to Act Nov. 4, 1918, § 1 (40 Stat. 1020), authorizing issuance of new certificates. Great Northern Ry. Co. v. Sutherland, U.S.N.Y.1927, 47 S.Ct. 315, 273 U.S. 182, 71 L.Ed. 596. Custodian's demand on trustee, after trustee had surrendered corpus of trust, was ineffective as seizure. Isenberg v. Trent Trust Co., C.C.A.9 (Hawai'i) 1928, 26 F.2d 609, adhered to on rehearing 31 F.2d 553, certiorari denied 49 S.Ct. 479, 279 U.S. 862, 73 L.Ed. 1001. A paper served by the Alien Property Custodian on a trust company holding in trust railroad securities, requiring it to hold the

securities and, on receiving information that any of them are owned by or held for the benefit of enemies, or on notice from him, to transfer the same to the Custodian, but which contains no determination that the owners of any of the securities are alien enemies, was not a "demand," which operated as a symbolical seizure of any of the securities. Hunter v. Central Union Trust Co. of New York, D.C.N.Y.1926, 17 F.2d 174. A demand on a trustee, holding property in trust for enemies, for a transfer of their rights, titles, and interest to the Alien Property Custodian, was sufficient, though signed by a subordinate, under an executive order authorizing him to delegate his power. Kahn v. Garvan, S.D.N.Y.1920, 263 F. 909. Where proper demands were made at various times in 1918 and 1919 upon executors which represented valid seizure under this section of remainder interest of alien enemies, although the interests of the alien enemies in remainder were contingent and were only recently vested by death of life tenant, the demands were sufficient to entitle the government to collection and payment. In re Littman's Estate, N.Y.Sur.1941, 28 N.Y.S.2d 458, 176 Misc. 679. *161600 Demand that property be conveyed, transferred, assigned, delivered, and paid over to Alien Property Custodian was sufficiently set forth that fee of premises was required by Alien Property Custodian, within § 1 et seq. of this Appendix and Executive Order No. 2813, § 1(c). Miller v. Lautenburg, N.Y.A.D. 1 Dept.1924, 205 N.Y.S. 214, 209 A.D. 608, affirmed 145 N.E. 907, 239 N.Y. 132. 150. ---- Time of demand Demand by Alien Property Custodian for cancellation of certificates of stock of corporation issued to alien enemy corporation and for issuance of new stock certificates to Custodian in their place, made before Congress declared war ended on July 21, 1921, entitled Custodian to new certificates and cancellation of certificates issued to alien enemy and possession of the dividends and surplus profits

declared on such shares, though Custodian's power to seize property terminated on July 21, 1921. In re Sutherland, D.C.N.Y.1927, 21 F.2d 667, modified 23 F.2d 595. Demand for property by Alien Property Custodian, served after formal termination of war, was ineffective. Matheson v. Hicks, D.C.N.Y.1926, 10 F.2d 872. 151. ---- Transfers without demand Trustee's voluntary surrender of corpus of trust to Custodian's depositary without authority from or demand by Custodian or determination that beneficiaries were enemies was unauthorized. Isenberg v. Trent Trust Co., C.C.A.9 (Hawai'i) 1928, 26 F.2d 609, adhered to on rehearing 31 F.2d 553, certiorari denied 49 S.Ct. 479, 279 U.S. 862, 73 L.Ed. 1001. 152. ---- Vesting order--Generally Under subsec. (c) of this section, consequences of executed vesting order of Alien Property Custodian cannot be frustrated by withholding delivery of accused property from custodian. Koehler v. Clark, C.A.9 (Or.) 1948, 170 F.2d 779. A vesting order issued pursuant to provision of this section is in effect a symbolic seizure of property therein described based upon a determination that the owner is an enemy national, and has effect of transferring all beneficial rights of owner in property to United States as completely as if such transfer were by conveyance, assignment, or other similar disposition. In re Heubach's Will, N.Y.Sur.1954, 134 N.Y.S.2d 169. Vesting order is the initial step and a condition precedent to a valid seizure of enemy-owned property under § 1 et seq. of this Appendix. In re Stagnaro's Estate, Cal.App. 1 Dist.1951, 236 P.2d 593, 107 Cal.App.2d 98.

*161601 153. ---- Acts constituting Neither statements of Alien Property Custodian, or his successor, the United States Attorney General, that licensing agreement between American licensee and German patent holder was illegal and unenforcible or that Custodian intended to terminate the agreement would constitute a "vesting". Brownell v. Ketcham Wire & Mfg. Co., C.A.9 (Wash.) 1954, 211 F.2d 121, 100 U.S.P.Q. 338. 154. ---- Amendment Since the power to vest interests owned by enemy nationals during the war period continued in the Attorney General after the resumption of friendly relations with enemy countries, and since interest, if any, of enemy nationals in intestate estate of the deceased vested at her death during the war period between this country and Germany and had not been alienated prior to the amended vesting order of October 5, 1956, the order was effective to vest any interest the beneficiary had prior to January 1, 1947, in the Attorney General as successor to the Alien Property Custodian. Rogers v. HartfordConnecticut Trust Co., D.C.Conn.1958, 165 F.Supp. 116. Where testatrix made bequest in trust to sister, a German national who predeceased the testatrix leaving a surviving son and the trust terminated before death of testatrix so that the interest vested in the son and vesting order of the Alien Property Custodian under this section did not name or purport to vest any interest of the son, amendment to the vesting order made after the presidential proclamation terminating the war with Germany so as to seize the son's interest was valid and the son's interest was lawfully seized. In re Schneider's Estate, Cal.App. 2 Dist.1956, 296 P.2d 45, 140 Cal.App.2d 710, appeal dismissed 77 S.Ct. 263, 352 U.S. 938, 1 L.Ed.2d 235. 155. ---- Scope Where citizen, after funds of enemy alien had been blocked,

attached such funds under New York law, and nothing in the attachment proceedings purported to frustrate the purposes of the freezing program and the Custodian sought only to vest in himself the "right, title and interest" of the alien enemies, in so far as the funds of the alien enemies were concerned, the Custodian was not entitled to a declaration that the claim for sheriff's poundage fees did not constitute a valid claim against them. McCloskey v. McGrath, U.S.N.Y.1951, 71 S.Ct. 848, 341 U.S. 475, 95 L.Ed. 1115. *161602 Where, after vesting of patents held by German national, federal government stood in German's shoes, it had all of German's rights, and, if by exercise of German's rights, particularly the alleged right to terminate license agreement for failure to provide royalties, American licensee's rights under licensing agreement were affected or became valueless, such action did not constitute a vesting of licensee's rights or taking of them by government. Brownell v. Ketcham Wire & Mfg. Co., C.A.9 (Wash.) 1954, 211 F.2d 121, 100 U.S.P.Q. 338. Where husband, who controlled family corporation, had certificate representing shares to which he was entitled by stock dividend issued in name of his wife, but certificate was never actually delivered to wife and she, in fact, had no knowledge of its existence, registration of stock and issuance of certificate in wife's name had effect only of promise to transfer and was not a completed gift, and promise to transfer was enforceable, if at all, by wife, and not by Alien Property Custodian who vested shares of which wife was record owner pursuant to this section. Shinsaku Nagano v. McGrath, C.A.7 (Ill.) 1951, 187 F.2d 753. In action by Attorney General to confiscate interest of aliens in estate of testator and in trust created under his will where none of the beneficiaries had or could demand any interest in the trust property, Attorney General by vesting order acquired no enforceable right in the trust property. Brownell v. Leutz, D.C.N.D.1957, 149 F.Supp. 98. Where vesting order, entered under § 1 et seq. of this Appendix,

determined that certain remaindermen and contingent remaindermen were enemy nationals and that their interest should vest in the Attorney General as successor to the Alien Property Custodian, Attorney General would succeed only to those interests which the remaindermen had while they were enemy nationals. Brownell v. Hartford-Connecticut Trust Co., D.C.Conn.1956, 147 F.Supp. 929. Where father, a national of an enemy country, returned in 1935 to his native land and left realty in charge of his son, a citizen of United States, and under vesting order realty and all claims for rents arising from ownership of property were vested in Alien Property Custodian, the Attorney General, as successor to Alien Property Custodian, was entitled to recover all rents collected by son from his father's premises from 1935 to date on which obligation to pay over the same to father was vested in Alien Property Custodian. Shoso Nii v. Clark, D.C.Hawai'i 1949, 81 F.Supp. 1003. If, under terms of bequest to German legatees, the legatees took presently vested interests, payment only being deferred, then fund would be payable to the Attorney General, as successor to the Alien Property Custodian who had, by his vesting order, vested in himself all right, title and interest of the legatees in the testatrix' estate. Clark v. Edmunds, W.D.Va.1947, 73 F.Supp. 390. *161603 Vesting order issued by Attorney General as successor of Alien Property Custodian, while vesting entire beneficial interest in inter vivos trust created by Japanese national in Attorney General, did not terminate same. In re Toshizo Huga's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 1001. Where vesting order was issued against income of a trust set up by will for benefit of certain German municipalities, all right, title, interest and claim of any kind or character of such municipalities to trust income was thereby transferred to Alien Property Custodian and to Attorney General of United States as successor, and income was not payable to testator's distributees as intestate property. In re Heubach's Will, N.Y.Sur.1954, 134 N.Y.S.2d 169.

Under will bequeathing money to Buergermeister of German city in trust to use income therefrom for care of testator's deceased parents' graves, Buergermeister could not compel payment of money to him individually, and United States Attorney General took no greater right under order vesting in him all right, title, interest and claim of Buergermeister in and to testator's estate. In re Saalberg's Estate, N.Y.Sur.1947, 75 N.Y.S.2d 707, 190 Misc. 966. Vesting order of Alien Property Custodian, directed at interest of beneficiary of primary testamentary trust and interest of beneficiaries of residuary trust and their issue in so far as they were alien enemies, vested in Custodian all right, title and interest of life tenant and other alien beneficiaries in the trust. In re Dieudonne's Estate, N.Y.Sur.1945, 53 N.Y.S.2d 56, 186 Misc. 642. Alien Property Custodian acquired no interest in escheated property through a vesting order because heirs had no interest to reach, since state's consent to pursue the property granted by statute, is not a property right, but only one of personal privilege, and therefore Custodian, by virtue of such vesting order, did not have standing to seek recovery of escheated property. Rogers v. Holmes, Or.1958, 332 P.2d 608, 214 Or. 687. Attorney General could not acquire, as result of vesting orders, greater rights or interests than those held by aliens, and when their rights were terminated, nothing remained which Attorney General could obtain. Security-First Nat. Bank of L. A. v. Rogers, Cal.1958, 330 P.2d 811, 51 Cal.2d 24. 156. ---- Effect A vesting order under § 1 et seq. of this Appendix does not ipso facto confer title to seized property in the Government; title, as such, passes for the first time at final conclusion in favor of Government of claimant's remedial actions under § 1 et seq. of this Appendix or when prescriptive time under such§ 1 et seq. has run. Ruoff v. C.I.R., C.A.3

1960, 277 F.2d 222. *161604 Vesting of title to corporate and partnership property gave alien property custodian the owner's right, title and interest therein. Pioneer Import Corp. v. Rogers, S.D.N.Y.1960, 190 F.Supp. 529. Where Delaware corporation allegedly entered into agreement with two Swiss corporations for purchase of stock of fourth corporation for sum payable upon issuance of license under § 1 et seq. of this Appendix and before issuance, Alien Property Custodian with knowledge of the agreement allegedly caused order to be issued vesting the shares, certificates for which were then issued in Custodian's name, alleged agreement constituted, dealing in evidences, of ownership of property expressly prohibited, and Custodian became vested with the stock free of any claims of buyer. Heyden Chemical Corp. v. Clark, S.D.N.Y.1948, 85 F.Supp. 949. Effect of order vesting alien property in United States Attorney General, under § 1 et seq. of this Appendix, is to divest title in the enemy national and transfer it to the Attorney General as successor to the alien property custodian. Brownell v. Union & New Haven Trust Co., Conn.1956, 124 A.2d 901, 143 Conn. 662. Fact that Attorney General, as successor of Alien Property Custodian, issued vesting order affecting inter vivos trust created by Japanese national for benefit of other Japanese nationals did not terminate trust as a matter of law. In re Toshizo Huga's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 1001. Order vesting interests of trust beneficiaries, who were residents of Germany, in Alien Property Custodian did not necessarily work a total forfeiture upon beneficiaries and did not require return of corpus to settlor under theory of resulting trust. In re Hellmann's Trust, N.Y.Sup.1954, 132 N.Y.S.2d 254, affirmed 143 N.Y.S.2d 601, 285 A.D. 1147.

Order of Alien Property Custodian declaring vested in himself all interest, if any, of enemy alien claimant in vessel, had legal effect of transferring completely to the Custodian for benefit of the United States property interest of claimant. In re Lustgarten's Estate, N.Y.Sur.1949, 91 N.Y.S.2d 907, 195 Misc. 438. Where United States Attorney General in vesting order determined that all of the right, title and interest of designated enemy national as legatee under a will in estate of decedent was enemy owned property, Attorney General acquired title thereto by the issuance of the vesting order. In re Woelfinger's Estate, N.Y.Sur.1948, 76 N.Y.S.2d 554, 191 Misc. 526. *161605 Order of Alien Property Custodian vesting in himself securities in name of enemy national did not determine whether plaintiff or enemy national was entitled to the securities, but it did give Custodian right to immediate possession of the securities for the benefit of the United States. Stern v. Newton, N.Y.Sup.1943, 39 N.Y.S.2d 593, 180 Misc. 241. Under order entered pursuant to this section, prior beneficial interests of life tenant and remaindermen, who were enemy nationals, in testamentary trust vested in Attorney General of United States as successor to Alien Property Custodian and trust would be terminated since purposes of trust thereafter could not be carried out according to will. In re Solbrig's Will, Wis.1959, 96 N.W.2d 97, 7 Wis.2d 44. 157. ---- Specificity Order vesting in Alien Property Custodian as enemy-owned property the interests of heirs in estate of intestate decedent could not specify all the heirs or define their interests with particularity prior to distribution, since the quantum of interest of any one heir could not be determined until the identity of all the heirs was determined, the size of the distributable share of each being dependent upon the total number entitled to inherit, which could not be determined until the time arrived for distribution. In re Stagnaro's Estate, Cal.App. 1

Dist.1951, 236 P.2d 593, 107 Cal.App.2d 98. 158. ---- Time of order If Costa Rican company was still owner of assets in its New York bank account under its name as of July 26, 1951, vesting order of Attorney General as of that date, under § 1 et seq. of this Appendix would not have provided proper basis for seizure of company's property, in absence of any finding in vesting order that company came within category of enemy national, either by reason of ownership of stock by German stockholders or any other factor. Gmo. Niehaus & Co. v. U. S., Ct.Cl.1967, 373 F.2d 944, 179 Ct.Cl. 232. Vesting order applies to situation existing at its date, and if plaintiff was a resident of Pennsylvania when her property was vested, she would be entitled to recover same. Willenbrock v. Rogers, C.A.3 (Pa.) 1958, 255 F.2d 236. Where American nationals and German national created an American corporation and agreed that if any party thereto should originate a process within specified field he would negotiate with the others the terms on which such corporation might have licensing rights to such process, no equitable interests in specific processes were thereby created in advance of an agreement by the parties; but, where the parties thereafter agreed on terms and granted licensing rights to such corporation under patent owned by German national, the American corporation thereby acquired a valid equitable interest or servitude which was not vested in Alien Property Custodian by his vesting order served on March 25, 1942, and covering only interest belonging on that date to the German national. Standard Oil Co., N. J. v. Markham, S.D.N.Y.1945, 64 F.Supp. 656, modified on other grounds 163 F.2d 917, 75 U.S.P.Q. 11, certiorari denied 68 S.Ct. 901, 333 U.S. 873, 92 L.Ed. 1149, certiorari denied 68 S.Ct. 902, 333 U.S. 873, 92 L.Ed. 1149, 77 U.S.P.Q. 676. *161606 Where Alien Property Custodian had made vesting orders as to interests of three beneficiaries of trusts who also

were entitled, as heirs at law of the testatrix, to receive property in trusts which were invalid under McKinney's N.Y. Personal Property Law, § 11 against perpetuities, such vesting orders entitled attorney general to receive the interests of such beneficiaries who were alive at time of making orders. Will of Von Merenberg, N.Y.Sup.1955, 137 N.Y.S.2d 714. Where one-third share of trust corpus vested in remainderman before her death, that order vesting her interest in Alien Property Custodian was not issued until after her death, did not impair validity or efficacy of order. In re Schluechterer's Estate, N.Y.Sur.1952, 116 N.Y.S.2d 635, 203 Misc. 578. In so far as interest of any alien beneficiary in testamentary trust is concerned, vesting order of Alien Property Custodian would be effectual even if death of such alien beneficiary occurred prior to date of vesting order. In re Dieudonne's Estate, N.Y.Sur.1945, 53 N.Y.S.2d 56, 186 Misc. 642. The fact that default of French general partnership which was not personally served in action to recover possession of certain securities held in account with American co-partnership occurred before issuance of vesting order of Alien Property Custodian to obtain custody of securities on ground that general partnership was an enemy national within meaning of Executive Orders, did not entitle plaintiff to securities on such default, where vesting order was served before any judgment was entered. Stern v. Newton, N.Y.Sup.1943, 39 N.Y.S.2d 593, 180 Misc. 241. Vesting of enemy property may only be done during period when vesting is authorized by law; but it is discretionary with Attorney General as to exactly when, during such period, vesting is to be accomplished. In re Ronkendorf's Estate, Cal.App. 3 Dist.1958, 324 P.2d 941, 160 Cal.App.2d 145. 159. ---- Judicial review

In proceeding by the Attorney General of the United States, as successor to the Alien Property Custodian, for enforcement of a vesting order and turnover directive with respect to property of enemy alien, little, if any, discretion existed on part of federal District Court to interject equitable principles. Brownell v. South Pittsburgh Sav. & Loan Ass'n, W.D.Pa.1955, 127 F.Supp. 783. A vesting order under this section was not open for judicial inquiry. Kotohira Jinsha v. McGrath, D.C.Hawai'i 1950, 90 F.Supp. 892. In view of limited jurisdiction of state probate court, in relation to distribution of estates, probate court could not recognize vesting order issued by United States Attorney General, as successor to Alien Property Custodian, under § 1 et seq. of this Appendix, as entitling Attorney General to distribution of shares of foreign distributees. Brownell v. Union & New Haven Trust Co., Conn.1956, 124 A.2d 901, 143 Conn. 662. *161607 It was for Alien Property Custodian to determine whether interests of United States would be effectively served by vesting of enemy national's property, and validity of that determination, or validity of any other basis of vesting order was not for Supreme Court to review. Stern v. Newton, N.Y.Sup.1943, 39 N.Y.S.2d 593, 180 Misc. 241. 160. Turnover directive Where citizen, after bank funds of enemy alien had been blocked, attached such funds under New York law, and the Alien Property Custodian not only served on the bank a "turnover directive", but also omitted any request for a declaration that the attachments were invalid and sought only a decree that the custodian was entitled to the possession of the funds in their entirety, the sheriff's claims for poundage fees could not defeat the right of possession of the funds by the custodian, in view of the paramount authority of the federal government over such funds. McCloskey v. McGrath, U.S.N.Y.1951,

71 S.Ct. 848, 341 U.S. 475, 95 L.Ed. 1115. In summary possessory proceeding under § 1 et seq. of this Appendix to reduce to possession of Attorney General as successor to Alien Property Custodian property previously vested and identified by vesting order as all property in possession or control of administrator of estate of named decedent, district court could only order and direct respondent administrator to comply with the vesting order by delivering to Attorney General the property referred to therein without any accounting or determination of heirship in state court having jurisdiction over administration of decedent's estate. Brownell v. Drews, E.D.Wis.1956, 143 F.Supp. 881. With respect to property legally comprehended within definition of a valid vesting order and demand against property of an enemy alien, or turnover directive, a suit brought by Attorney General pursuant to § 1345 of Title 28 authorizing District Court to enter decrees necessary to enforce § 1 et seq. of this Appendix, in lieu of a forcible seizure, is possessory only and must be yielded to, the right of any claimant being postponed to subsequent assertion. Clark v. Continental Nat. Bank of Lincoln, Neb., D.C.Neb.1949, 88 F.Supp. 324. Under testamentary trusts which have residents and nationals of an enemy as life beneficiaries and their heirs at law and next of kin as remaindermen, direction to trustee to comply with demand contained in turn-over directive issued under § 1 et seq. of this Appendix, did not constitute an adjudication of remaindermen's interests. In re Young's Estate, N.Y.Sur.1953, 118 N.Y.S.2d 803, 204 Misc. 92. *161608 Where Alien Property Custodian by vesting order determined that legatees under will of testatrix domiciled in Montana at time of death were enemy nationals and United States Attorney General as successor to property custodian filed turnover directives requiring payment of legacies to him, the legacies must be paid to Attorney General, leaving Montana to prosecute its claim to the legacies by escheat against Attorney General in accordance with § 1 et

seq. of this Appendix. In re Daly's Estate, N.Y.Sur.1947, 74 N.Y.S.2d 711, 189 Misc. 680. On application of Superintendent of Banks for an order authorizing him to pay over to Alien Property Custodian certain funds which Superintendent held as liquidator of New York agency of Japanese bank, where Property Custodian had served turnover directives on Superintendent determining therein that funds represented obligations owing by bank to the obligors and funds were vested in Custodian by vesting orders, only question which could be considered by N.Y. Supreme Court was whether funds in question were property as to which Custodian had made the determination. In re Yokohama Specie Bank, N.Y.Sup.1946, 66 N.Y.S.2d 289, 188 Misc. 137. 161. Assignment of rights by custodian Rights to funds deposited in city treasury to order of deceased alien which vested in Alien Property Custodian are assignable. In re Lustgarten's Estate, N.Y.Sur.1949, 91 N.Y.S.2d 907, 195 Misc. 438. 162. Service of notice of seizure The Alien Property Custodian perfected a seizure of corporate stock of an alien enemy by service of notice on the corporation which had issued the stock that he seized all the rights, privileges, and beneficial interests therein held by the persons specified in the notice, and required the same to be transferred to himself. Miller v. Kaliwerke Aschersleben Aktien-Gesellschaft, C.C.A.2 (N.Y.) 1922, 283 F. 746. 163. Summary proceedings for possession of property Where Custodian sought summary enforcement of order entered under § 17 of this Appendix directing New York bank to turn over debt owing by it to German bank arising out of a dollar account, bank's answer alleging absence of any indebtedness on ground that

German bank was instrumentality of German Government which had guaranteed to New York bank payment of debts of other German banks and that such debts exceeded claim against the New York bank, was insufficient to present New York bank's claim of a set-off or of a lien upon the deposit. McGrath v. Manufacturers Trust Co., U.S.N.Y.1949, 70 S.Ct. 4, 338 U.S. 241, 94 L.Ed. 31. Subsec. (c) of this section requires an immediate transfer of property to the Enemy Property Custodian on demand after investigation and determination by the President that it is enemy property without awaiting resort to the courts, and the determination is as decisive as in other cases under subsec. (a) of this section, and requires the court to order delivery of possession of the property to the Custodian, without considering whether it is enemy property, which order is not final against the right of a claimant who may file a claim under § 9 of this Appendix, and thereafter bring suit to establish his rights. Central Union Trust Co. of New York v. Garvan, U.S.N.Y.1921, 41 S.Ct. 214, 254 U.S. 554, 65 L.Ed. 403. *161609 In a proceeding to compel transfer of corporate stock owned by alien enemy on books of a domestic corporation, the decision of the court should not be affected by the Armistice between the United States and Germany, on suggestion that, whether or not, in view of the Armistice, the action in question should be prosecuted, was a matter for the determination of those charged with the administration of this section. Garvan v. Marconi Wireless Telegraph Co. of America, D.C.N.J.1921, 275 F. 486. So long as the Alien Property Custodian is exercising his powers under the authority of Congress, a court, in a proceeding to enforce his demand for delivery of property, cannot take into consideration the fact of the Armistice or that peace with Germany has been signed by other nations. In re Garvan, E.D.N.Y.1921, 270 F. 1002. Under § 1 et seq. of this Appendix, the Alien Property Custodian not only has power to vest enemy property in the United

States and summarily reduce it to possession, but the Custodian may resort to summary proceedings in the courts to reduce to possession property which he has determined to be enemy owned, and such proceedings do not leave open for adjudication correctness of Custodian's determination of enemy ownership, or validity of claims of any nonenemy against the vested property. Rogers v. Chemical Corn Exchange Bank, S.D.N.Y.1960, 180 F.Supp. 946. Proceeding on order to show cause why respondent, as administrator of the estate of named decedent, should not comply with specified vesting order by delivering to Attorney General, as successor to Alien Property Custodian, the property referred to in such vesting order was a summary proceeding to reduce to the possession of the Attorney General property previously vested by vesting order. Brownell v. Drews, E.D.Wis.1956, 143 F.Supp. 881. Where proper demands were made at various times in 1918 and 1919 upon executors which represented valid seizure under this section of contingent interests of remaindermen who were alien enemies and where interests had vested by death of life tenant, the surrogate had no alternative but to direct payment of funds to Attorney General of United States as successor in interest to the Alien Property Custodian. In re Littman's Estate, N.Y.Sur.1941, 28 N.Y.S.2d 458, 176 Misc. 679. 164. Jurisdiction of courts Correctness of determination of Alien Property Custodian of enemy ownership of certain motion pictures, under § 1 et seq. of this Appendix and validity of claims of any non-enemy against the vested property could not be litigated and adjudicated in a state court action. Brandon Films, Inc. v. Arjay Enterprises, Inc., N.Y.Sup.1962, 230 N.Y.S.2d 56, 33 Misc.2d 794, 133 U.S.P.Q. 165. *161610 165. Parties Trust beneficiaries could not intervene in summary possessory proceeding by alien property custodian against trustee for possession

of trust property but were confined to bringing action to recover the property. McGrath v. American Nat. Bank of Denver, D.C.Colo.1953, 117 F.Supp. 133. In proceeding by trustee of inter vivos trust created by Japanese national that involved question of effect of vesting order issued by Attorney General as successor of Alien Property Custodian, named beneficiaries of trust were proper if not necessary parties and guardian ad litem was properly appointed to protect the rights of the infants. In re Chiyo Tamura's Trust, N.Y.Sup.1956, 155 N.Y.S.2d 1007. 166. Interpleader of custodian Bank is not entitled to maintain bill to require Alien Property Custodian and depositor to interplead to determine rights to deposit. American Exchange Nat. Bank v. Garvan, C.C.A.2 (N.Y.) 1921, 273 F. 43, affirmed 43 S.Ct. 165, 260 U.S. 706, 67 L.Ed. 474. A bill of interpleader cannot be maintained by one holding securities in trust for enemies, a transfer of whose rights has been demanded by the Alien Property Custodian, against the aliens and the Custodian, as it is the intention of § 1 et seq. of this Appendix, that the decision of the Custodian shall be conclusive and that no remedies, except under § 9 of this Appendix shall exist. Kahn v. Garvan, S.D.N.Y.1920, 263 F. 909. An American bank, indebted to a depositor, an American citizen, which has been served with notice by the Alien Property Custodian that the deposit is the property of an alien enemy and required to pay the indebtedness to the Custodian, where the depositor also claims it, may maintain a bill of interpleader in a federal District Court against the depositor and the Custodian to have their respective rights determined. American Exchange Nat. Bank v. Palmer, S.D.N.Y.1919, 256 F. 680. The Alien Property Custodian, acting under § 1 et seq. of this Appendix, in adjudging that a corporation's property belonged to alien

enemies and demanding possession, and serving a copy of demand on defendant bank, holding a deposit made by individual plaintiff in name of corporation, which refused compliance therewith, was a part of prosecution, and where plaintiff sued to recover deposit pending a libel in the federal court by Alien Property Custodian to determine ownership of the fund in suit, defendant's motion under McKinney's N.Y. Banking Law, § 113, to interplead Alien Property Custodian would be denied, with leave to serve answer after determination of pending libel. Streb v. Chatham & Phenix Nat. Bank of the City of New York, N.Y.Sup.1919, 178 N.Y.S. 309, 108 Misc. 368. *161611 167. Objections to vesting The objection that the preliminary investigation required by subsec. (c) of this section, was not made by Alien Property Custodian before demanding property from the holder thereof, cannot be made in a proceeding to enforce the Custodian's demands instituted under § 17 of this Appendix, where the Custodian's determination and demands as to such property positively asserted that such investigation was made. Garvan v. Commercial Trust Co. of New Jersey, D.C.N.J.1921, 275 F. 841, affirmed 281 F. 804, affirmed 43 S.Ct. 486, 262 U.S. 51, 67 L.Ed. 858. An objection to vesting in Alien Property Custodian of interests of trust beneficiaries who are enemy aliens must be based upon condition precedent which completely defeats beneficiaries' rights or claims before date of vesting order. In re Ronkendorf's Estate, Cal.App. 3 Dist.1958, 324 P.2d 941, 160 Cal.App.2d 145. Blanket order vesting in Alien Property Custodian as enemyowned property the interests of three named Italian residents in estate of intestate decedent and the interests of all other heirs, names unknown, of named decedent, except named resident of the United States, and determining that, to the extent that such nationals were persons not within designated enemy country, the national interest of the United States required that they be treated as nationals of designated enemy country, was sufficient as against objections that it

did not determine that any particular heir was an enemy or should be treated as such or that any specific property should be turned over to Alien Property Custodian. In re Stagnaro's Estate, Cal.App. 1 Dist.1951, 236 P.2d 593, 107 Cal.App.2d 98. 168. Interest Where judgment was entered in action to enforce turnover directive issued by Alien Property Custodian, requiring respondent to turn over to Custodian money due to enemy alien, Attorney General was not entitled to interest from date of turnover directive for failure to turn over the money, unless interest was due enemy alien and Attorney General had claimed interest in turnover order. McGrath v. E. J. Lavino & Co., E.D.Pa.1950, 91 F.Supp. 786. 169. Costs and expenses of securing transfer *161612 The Secretary of the Treasury may lawfully comply with the request of the Alien Property Custodian for the payment of the commission and fees incurred in securing possession of certain enemy trusts herein set forth, to the extent that money has been deposited in the Treasury of the United States to the credit of the respective trusts. 1919, 31 Op.Atty.Gen. 438. 170. Laches In suit by the Attorney General to confiscate the interest of German residents in the estate of deceased, alleged fact that trustee for the estate had not fully accounted would not furnish ground for proceeding against trustee, since proceeding was barred by laches, where the claim was allowed to lie dormant for over 18 years. Brownell v. Leutz, D.C.N.D.1957, 149 F.Supp. 98. 171. Res judicata Where Attorney General of the United States, as intervenor in action brought by trustee in state court of New York for construction

of inter vivos trust indenture and an accounting, claimed, inter alia, that all of trust property passed to Attorney General under vesting order as property of enemy aliens and Attorney General did not seek review by United States Supreme Court of ruling of state court denying him any relief, such ruling was res judicata, barring subsequent action by Attorney General to have principal of trust transferred to him under vesting order as meantime amended. Brownell v. Chase National Bank of City of N.Y., U.S.N.Y.1956, 77 S.Ct. 116, 352 U.S. 36, 1 L.Ed.2d 99. No bar of res judicata or estoppel could be claimed against Attorney General who did not appeal from state court refusal to direct payment to him of funds vested under § 1 et seq. of this Appendix, where subject matter of state court actions was procedural, involving only mechanics of delivery of vested property, and federal action brought by the Attorney General pertained to title to vested property. Kennedy v. Union & New Haven Trust Co., C.A.2 (Conn.) 1961, 296 F.2d 655. In action by Attorney General to confiscate interest of aliens in the estate of deceased and in trust created under his will, where final decree of distribution vested stock in the defendant as trustee, decree was res judicata and would be binding, even if the County Court had made an error and the Attorney General would have no right to dividends except as beneficiary of the trust in place of the aliens. Brownell v. Leutz, D.C.N.D.1957, 149 F.Supp. 98. 172. Remedies for return of property Netherlands corporations whose property was vested during World War II in the Government were not entitled to maintain a suit against Government for return thereof which had not consented to the suits, in view of the exclusive remedy provided by subsec. (c) of this section and § 9(a) of this Appendix. Bank Voor Handel en Scheepvaart, N. V. v. Kennedy, C.A.D.C.1961, 288 F.2d 375, 109 U.S.App.D.C. 391, certiorari denied 81 S.Ct. 1923, 366 U.S. 962, 6 L.Ed.2d 1254.

*161613 In view of provisions of subsec. (c) of this section making suit under § 1 et seq. of this Appendix exclusive judicial remedy of one seeking return of property, court had no jurisdiction to grant relief to one who sought return of property but whose remedy under such § 1 et seq. was barred by limitation, either by suit in equity or by judicial review of administrative proceedings. Legerlotz v. Rogers, C.A.D.C.1959, 266 F.2d 457, 105 U.S.App.D.C. 256, certiorari granted 80 S.Ct. 76, 361 U.S. 808, 4 L.Ed.2d 57, amended 80 S.Ct. 119, 361 U.S. 808, 4 L.Ed.2d 99, certiorari dismissed 80 S.Ct. 803, 362 U.S. 938, 4 L.Ed.2d 768. The power of Congress to provide for an immediate seizure in wartime of property supposed to belong to the enemy is dependent upon adequate provision being made for its return in case of mistake, and whether adequate provision therefor has been made depends on whether the period for bringing suits for return of the property is reasonable. Brownell v. Morizo Nakashima, C.A.9 (Cal.) 1957, 243 F.2d 787, certiorari denied 78 S.Ct. 117, 355 U.S. 872, 2 L.Ed.2d 77. Remedy of person having claim to money or other property paid over to or seized by Alien Property Custodian, may not be sought outside subsec. (c) of this section, and such exclusiveness of remedy is constitutional. Tiedemann v. Brownell, C.A.D.C.1955, 222 F.2d 802, 96 U.S.App.D.C. 9. Under subsec. (c) of this section providing that sole relief and remedy of any person claiming money or property transferred to Alien Property Custodian shall be that provided by such subsection, no relief can be had in Court of Claims in suit for compensation or otherwise than in conformity with such subsection, since only to that extent has the United States consented to be sued. Uebersee Finanz-Korporation, A.G. v. Markham, App.D.C.1946, 158 F.2d 313, 81 U.S.App.D.C. 284, certiorari granted 67 S.Ct. 772, 330 U.S. 813, 91 L.Ed. 1268, affirmed 68 S.Ct. 174, 332 U.S. 480, 92 L.Ed. 88. Under subsec. (c) of this section, the determination of the Alien

Property Custodian, made in good faith, entitles him to the possession of alleged enemy property, and such possession will not be interfered with by injunction; § 1 et seq. of this Appendix providing methods for relief by those whose property was improperly taken. Salamandra Ins. Co. v. New York Life Ins. & Trust Co., S.D.N.Y.1918, 254 F. 852. The purpose and effect of § 1 et seq. of this Appendix was to authorize seizure of any property in the United States even though owned by a citizen of the United States if such citizen were resident within enemy country, and sole remedy provided for improper seizure was filing of claim by owner with Alien Property Custodian and bringing suit against Custodian for return of property. Ecker v. Atlantic Refining Co, D.C.Md.1954, 125 F.Supp. 605, affirmed 222 F.2d 618, certiorari denied 76 S.Ct. 84, 350 U.S. 847, 100 L.Ed. 754. *161614 Under subsec. (c) of this section providing that the sole remedy of any person claiming property seized by the Alien Property Custodian shall be that provided by § 1 et seq. of this Appendix, a foreign corporation seeking to establish an interest in property so seized could not obtain relief in a district court under former § 41(20) of Title 28 or in the Court of Claims under former § 250(1) of Title 28 in a suit for compensation, or otherwise than in conformity with § 1 et seq. of this Appendix. Swiss Bank Corp. v. Clark, S.D.N.Y.1947, 73 F.Supp. 896. 173. Amount of recovery Subsec. (c) of this section limiting recovery of nonenemy suing for seizure of his property as war measure to "net proceeds of sale" received and "held" by Alien Property Custodian did not preclude inquiry whether amounts expended were lawfully charged against gross proceeds. Becker Steel Co. of America v. Cummings, U.S.N.Y.1935, 56 S.Ct. 15, 296 U.S. 74, 80 L.Ed. 54. Under subsec. (c) of this section, "net proceeds" means no more than gross proceeds, less charges which may be rightly deducted, and the direction that the remedy should be limited to net proceeds "held"

by the Custodian or the treasurer must be taken not in the narrow and restricted sense as indicating only the proceeds retained by him at the precise moment of entering the decree but as signifying proceeds held by him at any time and not lawfully disbursed. Pflueger v. U.S., App.D.C.1941, 121 F.2d 732, 73 App.D.C. 364, certiorari denied 62 S.Ct. 98, 314 U.S. 617, 86 L.Ed. 497. VI. PROHIBITION ON PROSECUTION OF ACTIONS-GENERALLY < Subdivision Index > Generally 191 Admiralty proceedings 192 Appeals 202 Enemy alien as defendant Enemy alien as defendant - Generally 198 Enemy alien as defendant - Miscellaneous actions allowed 201 Enemy alien as defendant - Representation by proctors 199 Enemy alien as defendant - Suspension during war 200 License to do business 196 Payment of recovery to custodian 197 Probate proceedings 193 Representation by proctors, enemy alien as defendant 199 Stockholder derivative actions 194 Suspension during war, enemy alien as defendant 200 Workmen's compensation 195 191. Generally This section prohibiting a nonresident enemy alien or ally of an enemy alien from prosecuting an action in United States courts applies to both commercial and tort actions. Sundell v. Lotmar Corporation, S.D.N.Y.1942, 44 F.Supp. 816. See, also, Groupement Financier Liegois v. Cutten, 1942, 33 N.Y.S.2d 562, 178 Misc. 275. *161615 192. Admiralty proceedings

On seizure of German vessel by United States after declaration of war, libel filed in United States court, prior to its entrance into war, by British firm, should not be dismissed. The Kaiser Wilhelm II, C.C.A.3 (N.J.) 1917, 246 F. 786, 159 C.C.A. 88. A court of admiralty of the United States should for political reasons refuse to entertain a suit by a Canadian corporation against a Greek vessel requisitioned for use by the Greek government. The Athanasios, S.D.N.Y.1915, 228 F. 558. The purpose of § 1 et seq. of this Appendix is to prevent American money or property from falling into enemy hands, and this purpose is satisfied by permitting libel in admiralty brought in name of agent for nonresident enemy alien to proceed to judgment on condition that proceeds be delivered to Alien Property Custodian for further disposition. Pipe v. The La Salle, S.D.N.Y.1943, 49 F.Supp. 662. This section granting an enemy permission to defend any "suit in equity or action at law" must be construed broadly enough to include admiralty suits in rem. The Pietro Campanella, D.C.Md.1942, 47 F.Supp. 374. 193. Probate proceedings Despite the Hague Convention of 1907, c. 1, § 2, art. 23h, proceedings for proof of the will of a Massachusetts decedent need not be suspended because one of the heirs at law becomes an alien enemy pending the proceedings; subsec. (b) of this section not prohibiting prosecution of the petition for probate to final decision. Riddell v. Fuhrman, Mass.1919, 123 N.E. 237, 233 Mass. 69. An alien enemy or ally thereof was entitled to maintain a petition for revocation of letters testamentary where it was established by judgment in the probate proceedings that such enemy was a general creditor of the estate, petition was only incidental to the proceeding and was defensive in nature as to the acts of the legal custodian of the

property. State ex rel. Biering v. District Court, Fourteenth Judicial District, Meagher County, Mont.1943, 140 P.2d 583, 115 Mont. 174. 194. Stockholder derivative actions A stockholders' derivative action for waste of corporate assets of Belgian corporation, which was an alien enemy within purview of § 1 et seq. of this Appendix, could not be maintained since the corporation was in reality the plaintiff, and a nonresident alien enemy cannot during war prosecute an action in American courts. Rothschild v. Chemacid Societe Anonyme, N.Y.A.D. 2 Dept.1943, 44 N.Y.S.2d 689, 266 A.D. 1017, appeal denied 45 N.Y.S.2d 953, 267 A.D. 773. *161616 195. Workmen's compensation Limitations on filing claim for workmen's compensation are suspended during time of war where claimant is alien enemy residing in enemy country. Industrial Commission of Ohio v. Rotar, Ohio 1931, 179 N.E. 135, 124 Ohio St. 418, 10 Ohio Law Abs. 736, 35 Ohio Law Rep. 368. 196. License to do business A resident of Lithuania who claimed an interest in an estate under administration in New York, had no "business" within meaning of subsec. (b) of this section providing that an enemy or ally of an enemy licensed to do business under § 1 et seq. of this Appendix may prosecute and maintain any suit or action so far as it arises solely out of the business transacted within the United States under such license. In re Willer's Estate, N.Y.Sur.1942, 37 N.Y.S.2d 906, 179 Misc. 169. An alien enemy may maintain an action under provision of this section that an enemy alien licensed to do business may prosecute action so far as it arises solely out of business transacted within the United States under such license and so long as license remains in full force, since under such circumstances the alien enemy is in the position of an alien friend. Kaufman v. Eisenberg, N.Y.Sup.1942, 32

N.Y.S.2d 450, 177 Misc. 939. In an action on protested check drawn after issuance by federal government of license to trade with the enemy, it was determined that § 1 et seq. of this Appendix no longer applied, and that alien enemies had a legal right to maintain the action, notwithstanding that the government was still technically at war with the government of plaintiff's allegiance. Gardanier v. Celada, Ariz.1922, 207 P. 875, 24 Ariz. 185. 197. Payment of recovery to custodian A nonresident alien enemy cannot be granted right to sue on condition that avails of his recovery be paid to the Alien Property Custodian. H.P. Drewry, S.A.R.L., v. Onassis, N.Y.A.D. 1 Dept.1943, 42 N.Y.S.2d 74, 266 A.D. 292, affirmed 53 N.E.2d 243, 291 N.Y. 779. 198. Enemy alien as defendant--Generally Suit may be brought in a United States court against an alien enemy, but respondent, though an alien enemy, is entitled to defend before judgment be entered. Watts, Watts & Co. v. Unione Austriaca Di Navigazione, U.S.N.Y.1918, 39 S.Ct. 1, 248 U.S. 9, 63 L.Ed. 100. See, also, The Aussa, D.C.N.J.1943, 52 F.Supp. 927, reversed on other grounds 153 F.2d 138, certiorari denied 66 S.Ct. 1368, 328 U.S. 863, 90 L.Ed. 1633, rehearing denied 67 S.Ct. 31, 329 U.S. 820, 91 L.Ed. 698; U.S. v. San Leonardo, D.C.N.Y.1942, 51 F.Supp. 107, motion denied 71 F.Supp. 852; The Pietro Campanella, D.C.Md.1942, 47 F.Supp. 374; The Leontios Teryazos, D.C.N.Y.1942, 45 F.Supp. 618; The Santa Lucia, D.C.N.Y.1942, 44 F.Supp. 793; State ex rel. Muth v. Buzard, 1947, 205 S.W.2d 538, 356 Mo. 1149. *161617 No alien enemy can, during the existence of a state of war, obstruct, by his absence in enemy country, the operation of our laws as to the rights of citizens domiciled within the state, but such citizens may invoke such laws and enforce judgments and decrees relating to them, subject to the right of legal challenge when

peace has been restored. Chapman v. Northern Trust Co., 1920, 219 Ill.App. 492, affirmed 129 N.E. 836, 296 Ill. 353. 199. ---- Representation by proctors An enemy alien may be made a defendant in a suit in a federal court and may be represented by proctors as one of the means for defending the case. U. S. v. Grain Importers (Eire), C.C.A.1 (Mass.) 1944, 144 F.2d 921. Where libel and cross-libel for collision damage to vessels were filed by a citizen and resident of the United States and a citizen and resident of Italy, respectively, upon declaration of war between the United States and Italy, further proceedings on the part of the libelant should be stayed upon showing that cross-libelant's proctor could not conduct proper defense due to inability to communicate with client. The Santa Lucia, S.D.N.Y.1942, 44 F.Supp. 793. 200. ---- Suspension during war Action other than to preserve the status quo should not be taken in a suit against an alien enemy till, by reason of restoration of peace or otherwise, defense may be adequately presented; intercourse between residents of the enemy country and the United States being prohibited by this section as well as physically impossible. Watts, Watts & Co. v. Unione Austriaca Di Navigazione, U.S.N.Y.1918, 39 S.Ct. 1, 248 U.S. 9, 63 L.Ed. 100. Cause against an alien enemy for proceeds of shipment of cotton will be continued till peace is declared, German firms claiming it as owner of the cotton under bills of lading which complainant alleges were forged. City Nat. Bank of Selma v. Dresdner Bank of Bremen, S.D.Ala.1919, 255 F. 225. The rule that proceedings against enemy aliens will be suspended during a war has no reference to an enemy alien as a testamentary trustee. In re Amsinck's Estate, N.Y.Sur.1918, 169

N.Y.S. 336, 103 Misc. 124. 201. ---- Miscellaneous actions allowed The fact that United States was at war with Italy, in which alien enemy resided at time of filing his petition to reopen adverse decrees and distribution order in partition suit against him, did not preclude him from seeking such relief, as petition was not commencement of action, but defensive step in action wherein he was named defendant. Matarrese v. Matarrese, N.J.Err. & App.1948, 59 A.2d 262, 142 N.J. Eq. 226. *161618 In action against Estonian State Bank to which summons and complaint were mailed after declaration of war on Germany, which occupied Estonia, acting Consul General of Estonia was entitled to defend action, in which judgment by default had been entered, not as defendant's personal agent or as person authorized to receive process under N.Y. Civil Practice Act, § 229 [now McKinney's N.Y. CPLR 311, 320, 3012], but in his official capacity. Buxhoeveden v. Estonian State Bank, N.Y.Sup.1943, 41 N.Y.S.2d 752, 181 Misc. 155. The provisions of this section empowering an alien enemy to "defend by counsel any suit in equity or action at law which may be brought against him" includes an heir at law who is one of the contestants in a proceeding brought by an executrix for the proof and allowance of a will. Riddell v. Fuhrman, Mass.1919, 123 N.E. 237, 233 Mass. 69. In action by widow of intestate to subject to her claims a part of intestate's estate inherited by defendants, nonresident aliens, defendants, whose relation to the case was purely defensive, were not barred of their right to appeal from judgment adverse to them by the declaration of war between the United States and the country of defendants prior to rendering of the judgment, for the rule that the liability of an alien enemy to suit carries with it the right to all means of defenses includes appeal as one of the means of defense. Rau v.

Rowe, Ky.1919, 213 S.W. 226, 184 Ky. 841. 202. Appeals Dismissal or suspension of suit is not required by the fact that plaintiff becomes an alien enemy by declaration of war after he has recovered judgment and defendant has taken the case to the Circuit Court of Appeals, but judgment may properly be affirmed, with the modification that it be paid over to the Alien Property Custodian; aid and comfort to the enemy, the only objection to such a judgment, thus being prevented. Birge-Forbes Co. v. Heye, U.S.Tex.1920, 40 S.Ct. 160, 251 U.S. 317, 64 L.Ed. 286. An appeal taken from the district court to Supreme Court will not be dismissed because defendants, or parties in attitude of defendants, taking the appeal, are nonresident alien enemies. In re Thiede's Estate, Neb.1918, 169 N.W. 435, 102 Neb. 747. Injured servant does not lose capacity to sue under employers' liability law by reason of probable change in status from alien friend to alien enemy, taking place since employer's appeal was perfected. Superior & Pittsburg Copper Co. v. Davidovich, Ariz.1918, 171 P. 127, 19 Ariz. 402, affirmed 40 S.Ct. 218, 251 U.S. 544, 64 L.Ed. 407. Where employee was killed prior to war by United States against Germany, and deceased's mother was an alien, resident in Austria-Hungary, to which declaration of war had not been extended, appeal from a judgment dismissing her action will not be dismissed on ground that she was an alien enemy. Taylor v. Albion Lumber Co., Cal.1917, 168 P. 348, 176 Cal. 347. *161619 Action by alien enemy who recovered judgment from which defendant appealed before declaration of war was within the prohibition of subsec. (b) of this section against prosecution of suits or actions, and not within the exception with respect to suits against enemies. Held v. Goldsmith, La.1919, 96 So. 272, 153 La. 598.

VII. PROHIBITION ON PROSECUTION OF ACTIONS-ALIEN ENEMY AS PLAINTIFF < Subdivision Index > Generally 221 Change in status during suit 223 Corporations 225 Date of disability 224 Diplomats 226 Matters considered 222 Miscellaneous actions allowed 229 Miscellaneous actions disallowed 230 Nonresidents 228 Residents 227 221. Generally Common-law rule that an alien enemy, whether resident or not, cannot maintain an action in United States courts, applies only in so far as necessary to prevent use of the courts to accomplish a purpose which might hamper war effort or give aid to the enemy. Japanese Government v. Commercial Cas. Ins. Co., S.D.N.Y.1951, 101 F.Supp. 243. Plaintiff who did not come within definition of enemy alien contained in § 2 of this Appendix could maintain action against Belgian corporation for conversion of securities and for moneys due upon account stated. R. & L. Goldmuntz Sprl v. Fischer, N.Y.Sup.1945, 54 N.Y.S.2d 635. Generally, every resident, whether citizen or alien, may freely resort to courts but the right of an alien or alien enemy to so resort may be curtailed or entirely withheld by legislative action or authorized executive proclamation, and whether the right will be curtailed or withheld is a matter of "public policy." Kaufman v.

Eisenberg, N.Y.Sup.1942, 32 N.Y.S.2d 450, 177 Misc. 939. Declaration of existence of war is not alone sufficient, ex proprio vigore, to suspend remedies for the enforcement of debts and dues between citizens and subjects of an alien enemy. Fritz Schulz, Jr., Co. v. Raimes & Co., N.Y.City Ct.1917, 164 N.Y.S. 454, 99 Misc. 626, affirmed 166 N.Y.S. 567, 100 Misc. 697. Under § 1 et seq. of this Appendix the prohibition of "prosecution" of actions by alien enemies is confined to execution and carrying forward of whatever might be included within said sections. State ex rel. Biering v. District Court, Fourteenth Judicial District, Meagher County, Mont.1943, 140 P.2d 583, 115 Mont. 174. *161620 By international law, war suspends relations between citizens of the two countries and precludes prosecution of action by enemy alien against citizens of country in which the claims arise, except in some instances to maintain the status quo, especially in view of subsec. (b) of this section. Held v. Goldsmith, La.1919, 96 So. 272, 153 La. 598. 222. Matters considered Whether permitting a party to maintain action in courts of the United States will aid and comfort the enemy is the important consideration in determining whether § 1 et seq. of this Appendix precludes maintenance of such action. Compagnie Francaise De L'Afrique Occidentale, French West African Co. v. The Otho, S.D.N.Y.1944, 57 F.Supp. 829. 223. Change in status during suit A suit, properly brought by an alien against a citizen will not be dismissed because of a subsequent declaration of war between the United States and the government of which plaintiff is a subject, but may be suspended during the war. Plettenberg, Holthaus & Co. v. I.J. Kalmon & Co., S.D.Ga.1917, 241 F. 605.

Where cross-libelant was a citizen and resident of Italy, the declaration of war between the United States and Italy after filing of cross-libel "estopped" cross-libelant from taking any steps in furtherance of its cross-libel, until the cessation of hostilities. The Santa Lucia, S.D.N.Y.1942, 44 F.Supp. 793. Where plaintiffs were nonresident enemy aliens listed on the "Enemy Trading List" at the time the action was commenced, and neither plaintiffs nor their attorneys had obtained a license from the War Trade Board to bring this action, though the case was not within subsec. (b) of this section, the action must be dismissed, although peace had been declared before the motion to dismiss was made, as a right to maintain the action is dependent on plaintiffs' status when the action was commenced. Cohn v. James C. Gismond & Co., N.Y.A.D. 1 Dept.1922, 197 N.Y.S. 41, 203 A.D. 453. Neither sections 21 to 24 of this title nor section 1 et seq. of this Appendix precluded continued prosecution after commencement of war between United States and Germany, of wrongful death action previously brought on behalf of a resident of Germany. Leiberg v. Vitangeli, Ohio App.1942, 47 N.E.2d 235, 70 Ohio App. 479, 25 O.O. 211. Under subsec. (b) of this section nonresident enemy alien cannot institute action during continuance of war and cannot prosecute action instituted before commencement of war. Meier v. Schmidt, Neb.1948, 34 N.W.2d 400, 150 Neb. 383, rehearing denied 35 N.W.2d 500, 150 Neb. 647. *161621 A suit properly instituted in a state court by an alien against a citizen of this state will not be dismissed because plaintiff subsequently becomes an alien enemy by reason of a declaration of war between the United States and the government of which he is a subject, but such suit should be suspended during the continuance of the war by continuing the case from term to term until the declaration of peace. Hirlinger v. Zander, Ohio App.1919, 11 Ohio

App. 207, 30 Ohio C.A. 417. 224. Date of disability Where plaintiff was placed on proclaimed list of certain blocked nationals under this section, the courts of the United States were closed to the plaintiff from the date it was placed on such list. Oerlikon Mach. Tool Works Buehrle & Co. v. U. S., Ct.Cl.1952, 102 F.Supp. 417, 121 Ct.Cl. 616, vacated 151 F.Supp. 332, 138 Ct.Cl. 457. 225. Corporations A corporation organized under French law and domiciled in France, being technically an alien enemy while France was under German occupation, could not maintain a suit in courts of United States in its own name and in its own right, if it held also the beneficial interest in claim sued on. Compagnie Francaise De L'Afrique Occidentale, French West African Co. v. The Otho, S.D.N.Y.1944, 57 F.Supp. 829. A Belgian corporation which has removed its domicile and registered office to New York in accordance with Belgian decree law, is not a "nonresident alien enemy", but "resident alien", entitled to sue in American courts, even if considered a resident alien enemy, as lawful residence implies protection and capacity to sue and be sued. Chemacid, S.A., v. Ferrotar Corporation, S.D.N.Y.1943, 51 F.Supp. 756. Companies commercially domiciled or controlled in occupied territory are prohibited from maintaining a suit in our courts in the same way that residence in the enemy's own territory would act as a bar to bringing an action. H.P. Drewry, S.A.R.L., v. Onassis, N.Y.A.D. 1 Dept.1943, 42 N.Y.S.2d 74, 266 A.D. 292, affirmed 53 N.E.2d 243, 291 N.Y. 779. Action by German insurance company for conversion was

stayed, though a long delay may greatly impair its remedy. Nord Deutsche Ins. Co. of Hamburg,Germany v. J.L. Dudley, Jr. Co., N.Y.Sup.1918, 169 N.Y.S. 303, affirmed 169 N.Y.S. 1106, 183 A.D. 887. A corporation created by an American state cannot be excluded from the courts, though most of its stockholders are alien enemies living in Germany, so long as it has a legal existence and officers or agents authorized to do business or bring actions. Fritz Schulz, Jr., Co v. Raimes & Co., N.Y.Sup.1917, 166 N.Y.S. 567, 100 Misc. 697. *161622 226. Diplomats Application of the Royal Italian Ambassador for leave to file in the United States Supreme Court a petition for writs of prohibition and mandamus directed to United States District Court for District of New Jersey was denied where, after the application was filed, there occurred the declaration that the United States was at war with Italy. Ex parte Colonna, U.S.N.J.1942, 62 S.Ct. 373, 314 U.S. 510, 86 L.Ed. 379. Where the Swiss consul, on behalf of an alleged widow of a decedent who was a citizen and resident of Germany, filed a petition, proceeding on such petition should be stayed so long as the United States and Germany are at a technical state of war, for until peace is declared an alien enemy, resident of the enemy country, cannot prosecute an action in our courts. In re Kuntzsch's Estate, N.Y.Sur.1921, 187 N.Y.S. 245, 114 Misc. 694. 227. Residents A resident alien enemy is free to use the courts except in so far as such use would accomplish a purpose which might hamper our own war efforts or give aid to the enemy. Ex parte Kumezo Kawato, U.S.Cal.1942, 63 S.Ct. 115, 317 U.S. 69, 87 L.Ed. 58. See, also, Petition of Bernheimer, C.C.A.Pa.1942, 130 F.2d 396; The Ocean Gift, D.C.Cal.1942, 48 F.Supp. 625; Stern v. Ruzicka, D.C.D.C.1942,

44 F.Supp. 726; Uberti v. Maiatico, D.C.D.C.1942, 44 F.Supp. 724; Arndt-Ober v. Metropolitan Opera Co., 1918, 169 N.Y.S. 944, 182 App.Div. 513. Where complaining party is an enemy alien residing in United States, an action can be filed by him during war between the United States and country of his alienage, although such proceedings may be stayed for duration war unless Congress or presidential proclamation grant authority to proceed with the trial; but action is suspended only so far as necessary to prevent use of United States courts to accomplish a purpose which might hamper war effort or give aid to the enemy. Frabutt v. New York, C. & St. L. R. Co., W.D.Pa.1949, 84 F.Supp. 460. In determining whether resident alien should be prohibited as alien enemy from maintaining action in American courts, object is not to defeat alien enemy's right to recover amount owing him or shield citizen from enforcement of his just obligations, but to obviate any advantage being derived by enemy, directly or indirectly, pending hostilities. Chemacid, S.A., v. Ferrotar Corporation, S.D.N.Y.1943, 51 F.Supp. 756. *161623 In absence of a proclamation by the President proclaiming as enemies citizens of an enemy nation residing in the United States, no bar prevails against a citizen of an enemy nation residing in the United States from suing in its courts. Uberti v. Maiatico, D.C.D.C.1942, 44 F.Supp. 724. See, also, Anastasio v. Anastasio, D.C.D.C.1942, 44 F.Supp. 725; Heiler v. Goodman's Motor Express Van & Storage Co., 1918, 105 A. 233, 92 N.J.Law 415. The President's proclamation of April 6, 1917, recognizing state of war between Germany and United States did not preclude alien enemy from suing if he was resident; and under the treaty of 1799, affirmed by treaty of 1828, between kingdom of Prussia and United States, subject of Germany could still sue to collect debt contracted during time of peace, though existence of war has been recognized,

and in any event, a New Jersey corporation, whose stockholders were entirely citizens of Germany, had distinct corporate entity, and had to be regarded as domestic corporation, so that it could still sue on debts contracted during peace, though war had been declared. Fritz Schulz, Jr., Co. v. Raimes & Co., N.Y.City Ct.1917, 164 N.Y.S. 454, 99 Misc. 626, affirmed 166 N.Y.S. 567, 100 Misc. 697. A Japanese subject residing in California at outbreak of war between United States and Japan, had right, after outbreak of war, to appear in appellate court by his counsel and defend judgment which he obtained prior to such war, in absence of presidential proclamation denying access to federal or state courts to Japanese citizens who were actual bona fide residents of United States for several years before the war. Matsuda v. Luond, Cal.App. 4 Dist.1942, 126 P.2d 359, 52 Cal.App.2d 453. In view of President's Proclamation No. 1417, as to rights of Austrian nationals, and § 1 et seq. of this Appendix defining "enemies" a native of Austria-Hungary resident within the United States may sue for torts. Krachanake v. Acme Mfg. Co., N.C.1918, 95 S.E. 851, 175 N.C. 435, Am.Ann.Cas. 1918E,340. 228. Nonresidents War suspends the rights of nonresident alien enemy to prosecute action in the United States courts. Zittman v. McGrath, U.S.N.Y.1951, 71 S.Ct. 832, 341 U.S. 446, 95 L.Ed. 1096. An alien enemy resident in his own country is under disability during the war to institute and maintain a suit in this country, but this disability does not attach to alien enemies resident in this country. Speidel v. N. Barstow Co., D.C.R.I.1917, 243 F. 621. Under this section, a nonresident enemy lien my not sue in federal courts during period that United States is at war with foreign country and must wait until peace is declared and approved by congressional action of the Senate of the United States and by

appropriate representative authority of foreign country. Frabutt v. New York, C. & St. L. R. Co., W.D.Pa.1949, 84 F.Supp. 460. See, also, The Leontios Teryazos, D.C.N.Y.1942, 45 F.Supp. 618; In re Walz, 1944, 46 N.Y.S.2d 589, 181 Misc. 511, affirmed 50 N.Y.S.2d 179, 268 App.Div. 829, appeal denied 51 N.Y.S.2d 88, 268 App.Div. 862; H.P. Drewry, S.A.R.L. v. Onassis, 1943, 42 N.Y.S.2d 74, 266 App.Div. 292, affirmed 53 N.E.2d 243, 291 N.Y. 779; Panne v. Soler, 1917, 167 N.Y.S. 901, 101 Misc. 693; Rothbarth v. Herzfeld, 1917, 167 N.Y.S. 199, 179 App.Div. 865, affirmed 119 N.E. 1075, 223 N.Y. 578; Rotar v. Industrial Commission of Ohio, 1931, 178 N.E. 208, 40 Ohio App. 168, affirmed 179 N.E. 135, 124 Ohio St. 418; Meier v. Schmidt, 1949, 35 N.W.2d 500, 150 Neb. 647; In re Spinosa's Estate, 1953, 255 P.2d 843, 117 C.A.2d 364. *161624 It is immaterial how information that plaintiff is a nonresident alien enemy reaches the court which, on receiving such information, must suspend further prosecution of action. Groupement Financier Liegois v. Cutten, N.Y.Sup.1942, 33 N.Y.S.2d 562, 178 Misc. 275. 229. Miscellaneous actions allowed Chartered Bank of India, which was not an enemy of United States, could bring action against Japanese bank in liquidation in New York for amount of bills of exchange and telegraphic transfers to which it had legal title by indorsements to its order by Danish corporation before outbreak of World War II and could hold money received until Danish corporation obtained license or disability to receive money was removed by evacuation of German forces from Denmark. Great Northern Tel. Co. v. Yokohama Specie Bank, N.Y.Sup.1948, 82 N.Y.S.2d 252, affirmed 110 N.Y.S.2d 908, 279 A.D. 881, appeal and reargument denied 113 N.Y.S.2d 262, 279 A.D. 1064. The technical state of war existing between the United States and Roumania in 1952 because the legal status thereof had not been terminated by a peace treaty, did not preclude suit in which alleged

alien enemy, who died before suit was tried, was superseded by his administrator and which would result in a judgment for ultimate benefit of citizens of the United States. Miladin v. Istrate, Ind.App.1954, 119 N.E.2d 12, 125 Ind.App. 46, rehearing denied 119 N.E.2d 901, 125 Ind.App. 46. Rules preventing certain enemy aliens from resorting to our courts do not prevail against minor son of native of Austria resident in United States, since money recovered will be in charge of guardian appointed by court, and cannot be removed from state without court's consent, and so cannot be used in aid of enemy. Krachanake v. Acme Mfg. Co., N.C.1918, 95 S.E. 851, 175 N.C. 435, Am.Ann.Cas. 1918E,340. A writ of prohibition by heirs at law to prevent the sustaining of motion in nature of error coram nobis, which would vacate a judgment setting aside will and thereby establish the will, defeating rights to inherit, was purely a defensive action, and maintainable though heirs were nonresident enemy aliens. State ex rel. Muth v. Buzard, Mo.1947, 205 S.W.2d 538, 356 Mo. 1149. A proceeding to recover property which has been seized under a distress for rent is essentially defensive in its nature, and an alien enemy, whose property has been seized under a distress for rent, may maintain the statutory proceedings to recover the property, and assert such defensive rights as he may have under the lease. Fronkling v. Berry, Miss.1921, 88 So. 331, 125 Miss. 763. *161625 230. Miscellaneous actions disallowed Since deceased's sole heir, being an enemy alien residing in an enemy country, had no right to prosecute any suit or proceeding in any court in United States, the designee of such alien had no right to prosecute proceedings seeking the issuance of ancillary letters of administration. In re Walz, N.Y.Sur.1944, 46 N.Y.S.2d 589, 181 Misc. 511, affirmed 50 N.Y.S.2d 179, 268 A.D. 829, appeal denied 51 N.Y.S.2d 88, 268 A.D. 862.

Where property has been devised to alien enemy, no action can be maintained by the alien to recover it or the increment of the property while a state of war exists, and he acquires no dominion over it either for use or service. In re Kielsmark's Will, Iowa 1920, 177 N.W. 690, 188 Iowa 1378. Where the heirs of an assured have succeeded to the rights of beneficiaries under a fraternal benefit certificate, but are residents of a country with which the United States is at war, they cannot prosecute an action in this country to recover under the certificate. Weiditschka v. Supreme Tent of Knights of the Maccabees of the World, Iowa 1919, 170 N.W. 300, 188 Iowa 183, rehearing denied 175 N.W. 835, 188 Iowa 183. While the United States was at war with Italy, residents and citizens of Italy, being enemy aliens, could not appear and establish their rights as heirs of an intestate whose estate was being administered in California Probate Court, and no distribution could be made to such heirs. In re Spinosa's Estate, Cal.App. 3 Dist.1953, 255 P.2d 843, 117 Cal.App.2d 364. Nonresident alien living in Greece under German occupation during World War II was prohibited by § 1 et seq. of this Appendix from maintaining action in state court for property to which such alien had succeeded and which had been distributed to the state. In re Caravas' Estate, Cal.1952, 250 P.2d 593, 40 Cal.2d 33. VIII. PROHIBITION ON PROSECUTION OF ACTIONS-PRACTICE AND PROCEDURE < Subdivision Index > Alien Property Custodian, parties 253 Attachment of custodial property 264 *161626 Certiorari 270 Continuance 256

Declaratory judgment 265 Defenses 259 Depositions 263 Estoppel 260 Final appealable orders 269 Limitations Limitations - Generally 261 Limitations - Tolling of period 262 Mandamus 268 Modification of judgment 266 Parties Parties - Generally 252 Parties - Alien Property Custodian 253 Parties - Real party in interest 254 Parties - Substitution 255 Process 251 Real party in interest, parties 254 Stay of proceedings 257 Substitution of parties 255 Suspension of Suspension of - Enforcement of judgment 267 Suspension of - Proceedings 258 Tolling of limitations period 262 251. Process That defendants were domiciled in Germany and Austria, and, owing to war between those countries and the United States, it was impossible to carry out the provisions of Chancery Act, § 12, as to constructive service by reason of non-communication between the countries, will not affect the validity of a decree based on constructive service, for the presumption of notice is not rebuttable. Chapman v. Northern Trust Co., Ill.1921, 129 N.E. 836, 296 Ill. 353. In action for construction of will and for specific performance of contract for purchase of property devised to plaintiff by will, testator's brothers who were residents of enemy country were properly

served with process notwithstanding impossibility of their having opportunity of seeing publication of summons or receiving it by mail, where S.C.Code 1942, § 436 and Alien Property Custodian's publication order were minutely followed. Meier v. Meier, S.C.1946, 38 S.E.2d 762, 208 S.C. 520. *161627 Service by publication on a resident of Germany with whom communication was impossible by reason of the state of war existing between that power and other powers is of no effect. Busch v. Schuttler, 1919, 216 Ill.App. 212. 252. Parties--Generally English insurer having paid its insured, a French corporation, for loss resulting from damage to shipments of cocoa beans to United States and having been subrogated to all rights of insured to extent of such payment, was not precluded by § 1 et seq. of this Appendix from maintaining in the name of insured libel against the ship on which damage occurred since judgment recovered would not aid the enemy. Compagnie Francaise De L'Afrique Occidentale, French West African Co. v. The Otho, S.D.N.Y.1944, 57 F.Supp. 829. 253. ---- Alien Property Custodian This section applies only to claims for specific property in the possession of the Alien Property Custodian, and so does not prevent action in a state court to reform a German insurance company's contract of reinsurance and to recover judgment on it as reformed, or make such Custodian a necessary party defendant thereto. Insurance Co. of Pennsylvania v. Prussian Nat. Ins. Co., N.Y.Sup.1920, 184 N.Y.S. 103, 112 Misc. 199. The Alien Property Custodian may intervene in an action for conversion by an alien enemy and continue its prosecution. Nord Deutsche Ins. Co. of Hamburg, Germany, v. John L. Dudley, Jr., Co., Sup.1918, 169 N.Y.S. 303, affirmed 169 N.Y.S. 1106, 183 App.Div. 887.

In an action by alien enemies the Custodian of alien enemy property appointed by the president under § 1 et seq. of this Appendix may intervene and take over and conduct the prosecution of the action. Rothbarth v. Herzfeld, N.Y.A.D. 1 Dept.1917, 167 N.Y.S. 199, 179 A.D. 865, affirmed 119 N.E. 1075, 223 N.Y. 578. To adjudicate validity of bequest to alien enemies, court must have jurisdiction of Alien Property Custodian, so that he may defend rights of government and of aliens, in view of § 12, par. 4 of this Appendix. In re Shafer's Estate, S.D.1926, 209 N.W. 355, 50 S.D. 232, adhered to on rehearing 216 N.W. 948, 52 S.D. 182. 254. ---- Real party in interest Plaintiff, who becomes an alien enemy, cannot continue action at law or in equity, or institute further proceedings in courts, until the war is ended, save in certain exceptional instances; and a sales agent of German subject was not real plaintiff in infringement suit brought in name of German subject, so as to prevent suspension of proceedings pending war. Stumpf v. A. Schreiber Brewing Co., W.D.N.Y.1917, 242 F. 80. *161628 A domestic insurance company to whom claim for cargo damage had been transferred as a pledge to secure the repayment of money paid by the insurer was entitled as the "real party in interest" to prosecute the action to recover the cargo damage, notwithstanding the nominal libelant was a Philippine corporation having its principal place of business in Manila, and not entitled to prosecute the action under this section, since the clear purpose of § 1 et seq. of this Appendix was to prevent American property from falling into enemy hands, and there was no possibility of that occurring if the domestic insurance company was permitted to continue the libel. The Ivaran, S.D.N.Y.1942, 46 F.Supp. 394. 255. ---- Substitution

In libels for forfeiture of vessels, where judge had permitted Alien Property Custodian to intervene but had refused to permit substitution of Alien Property Custodian as claimant of vessels, another judge of same court would permit substitution of Attorney General as successor to Alien Property Custodian but would not permit substitution of Attorney General as claimant of vessels. U.S. v. The San Leonardo, E.D.N.Y.1947, 71 F.Supp. 852. Where United States filed libels to forfeit Italian vessels for willful damages contrary to former § 193 of Title 50 [now covered in § 2274 of Title 18] Alien Property Custodian claimed title to any rights or interests of owners and asked to be substituted for them as claimants, substitution would be denied because it would leave no "adverse interests" before the court and infringe statutory power of enemy owners to defend against forfeiture, but Alien Property Custodian would be made a party with right to receive any interest on vessels that claimants had at time of order vesting their interests in Alien Property Custodian. The Pietro Campanella, D.C.Md.1942, 47 F.Supp. 374. 256. Continuance Where there was an allegation of residence of each plaintiff in Belgium except one who was alleged to be resident of occupied France from time of commencement of action and prior thereto, in determining motion to stay trial of action because of the war, presumption of continuance controlled until contrary was established, and the burden of proof was on the one asserting change and seeking to rebut the presumption. Groupement Financier Liegois v. Cutten, N.Y.Sup.1942, 33 N.Y.S.2d 562, 178 Misc. 275. Under subsec. (b) of this section, where persons claiming as rightful distributees of decedent's estate presented petition for distribution and forced case to hearing, thus, in connection with their notices, summoning all the world to admit or deny their claims of heirship, citizen of Germany claiming nearer kinship to decedent had right by motion for continuance until peace between two countries to

defend his rights in courts of this country. In re Henrichs' Estate, Cal.1919, 179 P. 883, 180 Cal. 175. 257. Stay of proceedings *161629 Where injured seaman, a citizen of Hungary, overstayed his shore leave of 60 days, abandoned his calling, and did not obtain a visa as an immigrant or pay a head tax and thus lived in the United States illegally, seaman was a "non-resident enemy alien" who should be stayed from proceeding with libel for injuries sustained on a foreign ship while in a United States port for the duration of the war. The Leontios Teryazos, E.D.N.Y.1942, 45 F.Supp. 618. Where respondent was a corporation organized under laws of Empire of Japan, respondent's motion for a stay of all proceedings pending duration of war was granted. J.D. & A.B. Spreckels Co. v. The Takaoka Maru, S.D.N.Y.1942, 44 F.Supp. 939. In view of tolerant character of President's proclamation declaring existence of state of war with Germany, suit for injunction by individual complainant, subject of Germany, resident in United States, who has taken out first papers, and by German corporation, against persons charged with having deliberately set about to wreck New Jersey corporation wherein complainants held stock, will not be stayed on ground of alien enemy. Posselt v. D'Espard, N.J.Ch.1917, 100 A. 893, 87 N.J. Eq. 571. Even if plaintiff in action on notes would be under legal duty to remit proceeds of notes when collected to payee who was a resident and national of Italy, defendant was not entitled upon subsequent enactment of section to have action stayed until conclusion of a treaty of peace with Italy, but plaintiff, upon recovering judgment, would be permitted to act as holder of the funds until they could be lawfully transferred to payee. Kots v. Sachs, N.Y.City Ct.1945, 57 N.Y.S.2d 622, 185 Misc. 224. Where it appeared that each of the plaintiffs was nonresident,

domiciled in Belgium except one who was a resident of occupied France, and that those nations were occupied by military forces of Germany, plaintiffs' motion to stay trial of action to recover damages for conversion and fraud from unauthorized sale of securities was granted, under § 1 et seq. of this Appendix which is applicable to any action. Groupement Financier Liegois v. Cutten, N.Y.Sup.1942, 33 N.Y.S.2d 562, 178 Misc. 275. Where an action is pending at the outbreak of belligerency, the proper procedure for raising the point as to plaintiffs' incapacity to sue, because they are alien enemies, is by a motion to stay or arrest the action pendente bello, as they had capacity when they sued, at which time their capacity would be judged. Waldes v. Basch, N.Y.Sup.1919, 179 N.Y.S. 713, 109 Misc. 306, affirmed 181 N.Y.S. 958, 191 A.D. 904. Action by member of partnership of which alien enemy was a member prior to dissolution was not subject to stay, especially in view of subsec. (b) of this section. Siemund v. Schmidt, N.Y.Mun.Ct.1918, 168 N.Y.S. 935. *161630 Under subsec. (b) of this section trial court properly retained jurisdiction of action properly commenced by nonresident German alien prior to Germany's declaration of war on United States in 1941, and properly stayed proceedings in action until termination of war. Meier v. Schmidt, Neb.1948, 34 N.W.2d 400, 150 Neb. 383, rehearing denied 35 N.W.2d 500, 150 Neb. 647. The prosecution of a proceeding by an alien enemy being against public policy, it is the duty of the court to stay the proceeding when the fact that plaintiff is an alien enemy is made to appear at any stage of the proceeding, and it is not necessary that any plea or exception should be made by defendant. Galveston, H. & S.A. Ry. Co. v. Blankfield, Tex.Civ.App.1919, 211 S.W. 808. Denial of stay of proceedings, in effect an application for a continuance on account of the war between the United States and

Germany, to an alien enemy plaintiff who has been interned, was not an abuse of discretion, especially where it did not appear that plaintiff was a necessary witness in his own behalf. Lutz v. Van Heynigen Brokerage Co., Ala.1918, 80 So. 72, 202 Ala. 234. 258. Suspension of proceedings Where proceedings by Government of France were stayed pending procurement of personal verification of French Government, and diplomatic relations with France were severed prior to filing of such verification, action did not then abate and dismissal was not required, but action was merely suspended until France was no longer an enemy alien and a French Government was again recognized by United States. Government of France v. Isbrandtsen-Moller Co., S.D.N.Y.1943, 48 F.Supp. 631. Where stockholders' derivative action for waste of corporate assets of Belgian corporate alien enemy within purview of § 1 et seq. of this Appendix was commenced prior to declaration of war by the United States, prosecution of action would be suspended until cessation of hostilities, or until such time as Belgium was not occupied by German forces. Rothschild v. Chemacid Societe Anonyme, N.Y.A.D. 2 Dept.1943, 44 N.Y.S.2d 689, 266 A.D. 1017, appeal denied 45 N.Y.S.2d 953, 267 A.D. 773. The courts may summarily suspend actions by alien enemies, without requiring objection to be pleaded and determined on the trial, especially in view of subsec. (b) of this section. Rothbarth v. Herzfeld, N.Y.A.D. 1 Dept.1917, 167 N.Y.S. 199, 179 A.D. 865, affirmed 119 N.E. 1075, 223 N.Y. 578. A proceeding for appointment of permanent administrator of the estate of a deceased, who left no property in the state, the only reason for the appointment being to prosecute a suit for the benefit of the heirs who are residents of Austria-Hungary, will be suspended until the end of the war, in view of subsec. (c) of this section, denying to alien enemies the right to maintain suits in courts of the United States.

Galveston, H. & S.A. Ry. Co. v. Blankfield, Tex.Civ.App.1919, 211 S.W. 808. *161631 259. Defenses In action by American pledgees of certificates of marine insurance issued by a British insurance company, the insured goods, belonging to a German pledgor, having been captured by the British in the war against Germany, the contention that the action could not be maintained, because the pledgee would recover the full amount of the insurance certificates, and that any part thereof exceeding the amount secured by the pledge would be recovered in behalf of the German pledgor, stated no defense, as any aid and comfort to the enemy from such recovery could be prevented by exercise of the Alien Property Custodian's right to take and hold the proceeds of the recovery until declaration of peace. Guinness v. Phoenix Assur. Co. Limited of London, N.Y.A.D. 1 Dept.1921, 188 N.Y.S. 137, 196 A.D. 495. 260. Estoppel In applying section 1 et seq. of this Appendix, court of equity should be most reluctant, in view of equity's oftexpressed abhorrence of forfeitures, to raise estoppel which would work forfeiture of property of one who is neither an enemy nor an ally of an enemy within meaning of said § 1 et seq. Shinsaku Nagano v. McGrath, C.A.7 (Ill.) 1951, 187 F.2d 753. 261. Limitations--Generally Custodian seizing claim cannot avail himself of the benefit of the rule that a state statute of limitations does not run against the United States unless consent is given by an act of Congress. Lipmanowich v. Crookston Lumber Co., Minn.1926, 210 N.W. 47, 168 Minn. 332. Resident of Greece at time of German occupation during World War II was under a "disability" and a "statutory prohibition" within

statutes tolling statutes of limitation, in view of fact that § 1 et seq. of this Appendix prevented such resident from filing claim to property to which she had succeeded and which had been distributed to the state, and such time would not be used in determining five year period within which such resident was required to make demand for such property. In re Caravas' Estate, Cal.1952, 250 P.2d 593, 40 Cal.2d 33. 262. ---- Tolling of period Five year statute of limitation within which period nonresident alien was required to make demand for property to which she had succeeded and which had been distributed to the state would be tolled during time alien was denied access to courts because of war, even if such limitation were substantive, rather than procedural. In re Caravas' Estate, Cal.1952, 250 P.2d 593, 40 Cal.2d 33. *161632 263. Depositions Departure from the mode of return prescribed by state statute of deposition taken in foreign country, namely, by officer who took it putting it in the mail, was excused; that course being impossible because of war, and he having transmitted it in the only practical way, through the American consul to the Department of State, and from there by mail. Birge-Forbes Co. v. Heye, U.S.Tex.1920, 40 S.Ct. 160, 251 U.S. 317, 64 L.Ed. 286. 264. Attachment of custodial property In action by foreign corporations against German corporation, attachment was wrongfully issued by state court as respects property of defendant theretofore seized and turned over to the Alien Property Custodian of the federal government. Anglo-Continentale Trust Maatschappij v. Allgemeine Elektricitaets-Gesellschaft, N.Y.Sup.1939, 12 N.Y.S.2d 964. 265. Declaratory judgment

Sole relief and remedy provisions of this section embraces declaratory judgment form of judicial relief, as well as others, and therefore the Declaratory Judgment Act, § 2201 of Title 28, did not give a German national a right to judicial review of an adverse administrative determination of his claim, where such right did not otherwise exist, in view of fact the Declaratory Judgment Act is not an independent source of federal jurisdiction, and the availability of such relief presupposes existence of a judicially remedial right which did not exist in case of German national in question. Schilling v. Rogers, U.S.Dist.Col.1960, 80 S.Ct. 1288, 363 U.S. 666, 4 L.Ed.2d 1478. 266. Modification of judgment Under § 1 et seq. of this Appendix, writ of error to review judgment in favor of alien, who became alien enemy before disposition thereof, need not be held in abeyance; but, judgment being upheld, it should be modified, so as to direct payment to clerk of court, and by him to be transferred to Alien Property Custodian, without prejudice, however, to rights of any person not alien enemy to establish interest therein. Birge-Forbes Co. v. Heye, C.C.A.5 (Tex.) 1918, 248 F. 636, 160 C.C.A. 536, certiorari granted 38 S.Ct. 426, 246 U.S. 676, 62 L.Ed. 933, affirmed 40 S.Ct. 160, 251 U.S. 317, 64 L.Ed. 286. *161633 267. Suspension of enforcement of judgment Where American citizens, suing in aid of attachment procured againt an Italian firm, recovered judgment against American corporation for the attached funds, entry of judgment was not required to be stayed because of declaration of war between United States and Italy, but the most that § 1 et seq. of this Appendix required was that enforcement of judgment be suspended until license of President should be obtained to make payment. Brown v. J.P. Morgan & Co., N.Y.Sup.1941, 31 N.Y.S.2d 815, 177 Misc. 763. 268. Mandamus

Where President declined to exercise his authority under § 1 et seq. of this Appendix to exclude resident aliens from the courts, resident Japanese alien was entitled to writ of mandamus to compel district court to vacate judgment abating his libel in admiralty and to proceed to trial. Ex parte Kumezo Kawato, U.S.Cal.1942, 63 S.Ct. 115, 317 U.S. 69, 87 L.Ed. 58. 269. Final appealable orders In death action, wherein it appeared that beneficiaries resided in a nation at war with the United States and in a nation under control of such enemy nation, order staying proceedings for duration of war was not a "final order" from which appeal could be taken, where no abuse of discretion was shown. Stautzenbach v. Fritz, Ohio App.1942, 49 N.E.2d 180, 71 Ohio App. 251, 26 O.O. 69. 270. Certiorari Certiorari would be granted to review question of whether judicial review of an administrative disposition of claim of a German national under § 1 et seq. of this Appendix was precluded by this section, because of the importance of such question in the proper administration of § 1 et seq. of this Appendix. Schilling v. Rogers, U.S.Dist.Col.1960, 80 S.Ct. 1288, 363 U.S. 666, 4 L.Ed.2d 1478.