Bek v. Miller

• Decision Date: 02 November 1925
• Docket Number: No. 4192.,4192.
• Parties: BEK v. MILLER, Alien Property Custodian, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 36, 8 F.2d 797 (1925)

BEK v. MILLER, Alien Property Custodian, et al.

No. 4192.

Court of Appeals of the District of Columbia.

Submitted October 7, 1925.

Decided November 2, 1925.

E. F. Colladay, Edward Clifford, and Benjamin Pettus, all of Washington, D. C., and A. W. Lafferty, of New York City, for appellant.

D. H. Stanley, C. W. McClean, and Peyton Gordon, all of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This suit was brought by Emilie Bek to recover an interest in certain property seized and held by the Alien Property Custodian under the Trading with the Enemy Act. The suit was brought under section 9, par. (b) 3, of that act, as amended June 5, 1920 (Comp. St. Ann. Supp. 1923, § 3115½e), permitting a recovery from the Custodian of "any interest, right, or title in any money or other property," at the suit of a married woman who at the time of her marriage was a citizen of the United States, and who prior to April 6, 1917, intermarried with a subject or citizen of Germany, provided that the money or property concerned was not acquired by her, either directly or indirectly, from any subject or citizen of Germany or Austria-Hungary subsequent to January 1, 1917. The lower court decreed against the claimant, and she has appealed.

It appears that on April 18, 1899, the appellant, then a citizen of the United States, was married to Ernst Gideon Bek, a citizen of Baden, Germany; that appellant and her husband then established their home in Baden, and have lived there ever since; that the law of Baden then in force provided for the community ownership by husband and wife of all personal property owned by them at the time of their marriage, as well as that subsequently acquired by them, with certain exceptions not at present material, unless they duly made and registered a contract to the contrary; that these parties did not register such a contract, but remained all the time under the community system; that appellant's husband, assisted by a wedding gift of the appellant in the sum of $500, and by her personal services, conducted the business of a manufacturing jeweler in Baden, and later established a branch of the business in the United States under the name of Ernst Gideon Bek, Inc., the corporate shares of this concern standing in the name of the husband. These shares were seized by the Alien Property Custodian in February, 1918, as enemyowned property, and were subsequently sold by him for the sum of $61,690.75, which sum remains in his custody. The appellant claims that she was the owner of a half interest in the stock at the time of its seizure, and is entitled to recover the full half of its proceeds.

It is conceded upon the record that the rights of the plaintiff in the community property are defined by the sections of the German Civil Code Relative to a Community of Movables. At the trial below the Wang translation of these sections was admitted in evidence, with permission to the parties to refer to such of them as they might deem material. The following references accordingly appear in the record:

"Sec. 1438. Under the general community of goods the property of the husband and the property of the wife become the common property of both spouses; i. e., common property. Common property includes also any property which he or she acquires during the subsistence of the community of goods.

"Individual objects become common property without the necessity of transfer by juristic act.

"If a right which has been or may be entered in the land register becomes common property, either spouse may require the other to concur in rectifying the land register."

"Sec. 1442. Neither spouse may dispose of his or her share in the common property or in the individual objects belonging thereto, he or she is not entitled to demand partition. A debtor may set off a claim enforceable against the common property only against a claim forming part of the common property.

"Sec. 1443. The common property is subject to the management of the husband. The husband is also entitled to take possession of all things forming part of the common property, or to dispose of such property, or to bring actions relating to such property in his own name. By the husband's acts of management the wife is personally bound neither to third parties nor to her husband.

"Sec. 1444. The husband requires the approval of his wife for a juristic act whereby he binds himself to dispose of the common property as a whole, or to make any disposition affecting such property whereby such an obligation incurred without the consent of the wife is to be fulfilled.

"Sec. 1445. The husband requires the approval of his wife for disposing of any land forming part of the common property, or for incurring an obligation to make such a disposition.

"Sec. 1446. The husband requires the approval of his wife for making a gift out of the common property, or for making any disposition affecting the common property whereby the promise of such a gift given without the consent of the wife is to be fulfilled. The same rule applies to the promise of a gift not affecting the common property. Gifts made in compliance with a moral duty or the rules of social propriety are excepted."

Other applicable provisions of the law are as follows: If the husband disposes of any of the property without the consent of the wife, in the cases where such consent is necessary, she may enforce her rights against third parties without his concurrence (section 1449); if he is prevented by illness or absence from attending to the necessary business of the community she may act (section 1450); the wife may have the community of goods dissolved and her one-half interest placed under her sole control (1) if her husband has undertaken to dispose of property contrary to the provisions of section 1444-6 without her consent, (2) if he has diminished the common property with the intent to injure her, (3) if he has failed to furnish proper maintenance to her and her children, (4) if he seriously endangers the common property through waste of funds, or (5) if the common property is endangered in consequence of liabilities incurred by him (section 1468); in the event of a separation of goods and liquidation of community property, the residue belongs to the spouses in equal shares (section 1476), the distribution being made as in case of a partnership (section...