678 F.2d 1150 (2nd Cir. 1982), 446, Kunstsammlungen Zu Weimar v. Elicofon

Docket Nº:446, 535, Dockets 81-7542, 81-7544.
Citation:678 F.2d 1150
Party Name:KUNSTSAMMLUNGEN ZU WEIMAR, Plaintiff-Intervenor-Appellee, and Elisabeth Mathilde Isidore Erbgrossherzogin Von Sachsen-Weimar-Eisenach (Grand Duchess of Saxony-Weimar), Plaintiff-Intervenor-Appellant, and Federal Republic of Germany, Original Plaintiff, v. Edward I. ELICOFON, Defendant-Appellant.
Case Date:May 05, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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678 F.2d 1150 (2nd Cir. 1982)

KUNSTSAMMLUNGEN ZU WEIMAR, Plaintiff-Intervenor-Appellee,


Elisabeth Mathilde Isidore Erbgrossherzogin Von

Sachsen-Weimar-Eisenach (Grand Duchess of

Saxony-Weimar), Plaintiff-Intervenor-Appellant,


Federal Republic of Germany, Original Plaintiff,


Edward I. ELICOFON, Defendant-Appellant.

Nos. 446, 535, Dockets 81-7542, 81-7544.

United States Court of Appeals, Second Circuit

May 5, 1982

Argued March 25, 1982.

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[Copyrighted Material Omitted]

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Richard W. Hulbert, New York City (David G. Sabel, Jonathan I. Blackman, Cleary, Gottlieb, Steen & Hamilton, New York City, of counsel), for defendant-appellant.

Harry I. Rand, New York City (Lawrence M. Kaye, James A. Altman, Botein, Hays, Sklar & Herzberg, New York City, of counsel), for plaintiff-intervenor-appellee Kunstsammlungen zu Weimar.

Benjamin B. Ferencz, New York City (Kenneth Simon, Taylor, Ferencz & Simon, New York City, of counsel), for plaintiff-intervenor-appellant Grand Duchess of Saxony-Weimar.

Before FEINBERG, Chief Judge, and MANSFIELD and OAKES, Circuit Judges.

MANSFIELD, Circuit Judge:

In this diversity suit involving two foreign countries (East Germany and West Germany), a foreign national, and an American citizen, we are asked to determine the ownership of two priceless Albrecht Duerer portraits executed around 1499. 1 They were stolen in 1945 from a castle located in what is now East Germany and fortuitously discovered in 1966 in the Brooklyn home of Edward I. Elicofon, an American citizen, where they had been openly displayed by him to friends since his good-faith purchase

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of them over 20 years earlier without knowledge that they were Duerers. The search for an answer to the deceptively simple question, "Who owns the paintings?," involves a labyrinthian journey through 19th century German dynastic law, contemporary German property law, Allied Military Law during the post-War occupation of Germany, New York State law, and intricate conceptions of succession and sovereignty in international law.

The Grand Duchess of Saxony-Weimar ("Grand Duchess"), who intervened as plaintiff in the lawsuit, which was initiated in 1969 by the Federal Republic of Germany ("FRG"), the government of West Germany, claims that the paintings were and remain the private property of the successive Grand Dukes of Saxony-Weimar and that title to the paintings was assigned to her by her husband Grand Duke Carl August. Kunstsammlungen zu Weimar ("KZW"), or the Weimar Art Collection, also intervened as plaintiff representing the interests of the German Democratic Republic ("GDR"), the government of East Germany, claiming that title to the paintings passed to the GDR as a successor in interest to the public property of predecessor sovereignties. Elicofon claims title based on his good faith purchase and uninterrupted possession of the paintings for 20 years.

In separate opinions, Judge Jacob Mishler of the Eastern District of New York granted summary judgment in favor of KZW and dismissed the claims of both intervenor-plaintiff Grand Duchess and defendant Elicofon. We affirm, substantially for the reasons stated in Judge Mishler's thorough and carefully reasoned opinions. See 536 F.Supp. 813 (E.D.N.Y.1978) and 536 F.Supp. 829 (E.D.N.Y.1981).

This consolidated appeal raises two distinct issues: (1) as between the Grand Duchess and KZW, who owned the Duerer paintings when they were stolen in 1945; and (2) whether Elicofon subsequently acquired valid title at the expense of the true owner, either upon his purchase or at some later time as a result of his uninterrupted good faith possession of them for 20 years from 1946 to 1966. In summarizing the facts we are guided by the principles that summary judgment is appropriate only where there is no genuine issue as to any material fact and that the inferences to be drawn "must be viewed in the light most favorable to the part(ies) opposing the motion." United States v. Diebold, 369 U.S. 654, 655, 82 S.ct. 993, 994, 8 L.Ed.2d 176 (1962).

The two Duerer paintings had been in the possession of successive Grand Dukes of Saxony Weimar since at least Goethe's time in 1824. They were part of what was known as the Grossherzogliche Kunstsammlung, or the "Grand Ducal Art Collection." By 1913 the paintings along with other art objects were displayed in the Grand Ducal Museum in Weimar. Notwithstanding the failure of the 1913 Museum catalogue to designate the Duerer paintings as privately owned by the then Grand Duke (Wilhelm Ernst), the Grand Duchess maintains that they were his personal property and continued to be the personal property of his successors. KZW contends, to the contrary, that the paintings were public property on the basis of 19th century dynastic law, a 1921 settlement between the Grand Duke Wilhelm Ernst and the newly established Territory of Weimar (the successor sovereign of the Grand Duchy), and a 1927 settlement with the Land of Thuringia, successor to the Territory of Weimar.

Under German dynastic law in the nineteenth and early twentieth century property held by royal heads of state (e.g., grand dukes, princes, etc.) in their capacities as sovereigns was distinguished from property held in their private capacities. Personally-owned property could be disposed of freely, while property held as sovereign could be disposed of only with the express authorization of the Landtag (i.e., the Diet or Parliament) and normally passed upon the death of a grand duke to his eldest son as successor sovereign. KZW contends that the Grand Ducal Art Collection, which included the two Duerer paintings, constituted "Krongut" (roughly,

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"crown goods"), held by the Grand Duke of Saxony Weimar as sovereign only and not in his personal capacity as private property. Therefore, it urges, when Grand Duke Wilhelm Ernst abdicated his sovereignty in November 1918 upon Germany's defeat, any rights he formerly exercised as sovereign regarding the Grand Ducal Art Collection automatically passed to the Territory of Weimar. 2

The Grand Duchess responds that in 1848 the Grand Ducal Art Collection was declared to be a "Kronfideikomiss" (roughly, "family trust"), in which title was vested in the Grand Ducal family until the male line became extinct, thereby removing the Collection from the domain of property held as sovereign. However, according to KZW's German law expert, the terms "Krongut" and "Kronfideikomiss" were used interchangeably and both were subsumed under the broader classification "Kammervermoegen" (or property of the chamber), which denotes the aggregate of the property held by the sovereign in his official capacity. Under this view, title to the Duerer paintings passed to the Territory of Weimar automatically in 1918.

Subsequent to his abdication the Grand Duke Wilhelm Ernst in 1921 entered into an "Auseinandersetzungsvertrag" or settlement agreement ("1921 Agreement") with the Territory of Weimar, which defined their respective rights and obligations with respect to property held as "Kammervermoegen" and that held by him privately. Section 1 of that Agreement provided:

"The former sovereign, Grand Duke Wilhelm Ernst of Saxony, having, on November 9, 1918, for himself and his family, renounced the throne and succession to the throne in Saxe-Weimar-Eisenach for all time, the Grand Duke acknowledges a simultaneous renunciation of the payment of the civil list for the period on and after January 1, 1919 and that the entire Kammervermoegen, inclusive of the Krongut, is the exclusive property of the Territory of Weimar or its legal successor, insofar as not otherwise hereinafter expressly provided." (Citation omitted).

With respect to artwork privately owned by the Grand Duke, § 8 provided that he

"shall continue, as heretofore, to permit the public view of the objects d'art belonging to him and his family that are presently situated in public institutions and museums...."

Under § 9 these privately-owned art objects would become the property of the Territory of Weimar upon the extinction of his male line. Other sections provided for the surrender and reservation of certain rights and privileges. Section 17 provided for a lump sum payment and annuities to descendants. 3

Subsequent to the 1921 Agreement it became apparent that the Grand Duke had surrendered physical possession of only a part of the former Grand Ducal Art Collection, 4 including the Duerer paintings, but had improperly retained a portion, some of which had been destroyed or lost. The Land of Thuringia, which had succeeded to

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the Territory of Weimar, 5 therefore commenced an arbitration proceeding pursuant to § 34 of the 1921 Agreement against the heirs of Grand Duke Wilhelm Ernest (who had died in 1923 or 1924) seeking the withheld portion. After lengthy negotiations in which the Grand Duke's widow, acting on her own behalf and for her minor children, maintained that the former Ducal Art Collection had always been and still was the Grand Duke's private property, the parties reached a settlement in 1927 ("1927 Agreement"). Section 1 of that Agreement provided:

"The arbitration defendants (Grand Duke's widow and heirs) acknowledge the property of the Land of Thuringia in the so-called Grand Ducal Art Collection. They surrender (give up) this collection, insofar as it is not already in the direct possession of the Land of Thuringia, and insofar as exceptions are not herein provided, to the Land."

An exchange of correspondence between the parties clearly reveals that the phrase "so-called Grand Ducal Art Collection" was meant to encompass both those paintings previously surrendered, including the Duerers, and those that had been improperly retained.


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