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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. GENERALLY 1-30
II. 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 trade-

mark 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. Aktien-
Gesellschaft Für Feinmechanik, Vormals Jetter & Scheerer, v. Kny-
Scheerer 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 Aktien-
Gesellschaft, 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 burdens. Brownell v. Leutz,
D.C.N.D.1957, 149 F.Supp. 98.

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. Hartford-
Connecticut 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 enemy-

owned 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.