Brownell v. Edmunds

• Decision Date: 07 March 1953
• Docket Number: Civ. No. 287.
• Citation: 110 F. Supp. 828
• Court: U.S. District Court — Western District of Virginia
• Parties: BROWNELL, Atty. Gen. v. EDMUNDS et al.

110 F. Supp. 828

BROWNELL, Atty. Gen. v. EDMUNDS et al.

Civ. No. 287.

United States District Court W. D. Virginia, Lynchburg Division.

March 7, 1953.

Rowland F. Kirks, Asst. Atty. Gen., Howard C. Gilmer, Jr., U. S. Atty., Roanoke, Va., and Elmer J. Kelsey, Atty., Dept. of Justice, Washington, D. C., for plaintiff.

Edward S. Graves and Edmunds, Whitehead, Baldwin & Graves, Lynchburg, Va., for defendants.

BARKSDALE, District Judge.

On April 17, 1945, Mrs. Shirley M. Suhling, a citizen and resident of Lynchburg, Virginia, died, testate, her holographic will having been dated July 11, 1944, and admitted to probate on June 12, 1945. Mrs. Suhling's husband, who predeceased her, was Johannes Suhling, a native of Bremen, Germany, who had been naturalized many years prior to his death. By her will, she first appointed a local trust company, her lawyer J. Easley Edmunds, Jr., and her son Thomas Fuller Torrey, as her executors. The latter two duly qualified, and are the defendants in this action, as is Thomas Fuller Torrey as an individual. After the appointment of her executors, Mrs. Suhling's will provides as follows:

"All that I have, real and personal, I leave to my beloved son, Thomas Fuller Torrey, with the exception of the following bequests."

The will then proceeds to enumerate fifteen bequests to members of her family, two servants and her Church. Then follows the bequest here in controversy:

"I also want my husband's family in Bremen, Germany, the Stellohs and Kleintitschens, to share in my estate (should they survive this war) to the extent of $20,000.00."

The will concludes with a further bequest of $5,000 to her Church as a memorial to her husband, and a final bequest of $10,000 "to be used as a future memorial to my son, Thomas F. Torrey", which latter bequest being judicially determined to be void for uncertainty, lapsed and became a part of the residuary estate going to testatrix' son, Thomas Fuller Torrey, who was also her sole heir at law and distributee.

Mrs. Suhling's husband had one sister, Anna Catherine Suhling Stelloh, who resided in Bremen, and died there on April 29, 1943. Mrs. Stelloh had one son, Johannes Stelloh, who died on July 14, 1941, survived by his widow and three sons, all of whom survived the war. Mrs. Stelloh also had a surviving daughter, Johanne Stelloh Kleintitschen, who had three daughters, all of whom survived the war. One of her daughters married one Vogel after Mrs. Suhling's death and prior to the termination of the war, and has a daughter, Sabine Claudia Vogel, who was born prior to the termination of the war and survives. Mrs. Suhling, at the time of her death, knew of the death of Johannes Stelloh, but she never knew of the death of her husband's sister, Anna Catherine Stelloh.

On February 18, 1946, the Alien Property Custodian issued Vesting Order 5940 under the authority of the Trading With the Enemy Act, as amended, 50 U.S.C.A.Appendix, § 1 et seq., and Presidential Executive Order 9193, as amended, 50 U.S. C.A.Appendix, § 6 note, 7 Fed.Reg. 5205, vesting in himself for the benefit of the United States, all right, title, interest and claim of any kind or character whatsoever, of the Kleintitschens and Stellohs whose names were known to him, and members of the family of Johannes Suhling, the Stellohs and Kleintitschens, names unknown.

Demand having been made upon the executors for the fund here in controversy which was refused, on April 18, 1946, the Alien Property Custodian instituted his action in this court against the executors and Thomas Fuller Torrey, individually, for the purpose of obtaining an adjudication that he was entitled to payment of the fund here in controversy. After the substitution of the Attorney General as plaintiff therein, the executors paid the fund in controversy into the Registry of this court on November 4, 1946, pursuant to Rule 67, Federal Rules of Civil Procedure, 28 U.S.C.A. Following the filing of the defendants' answer, plaintiff moved for a summary judgment in his behalf, which motion was denied by order entered therein on September 15, 1947, the court being of opinion that the determination of the question of who was entitled to the fund in controversy must await the termination of the war, for reasons set out in an opinion. Clark v. Edmunds, D.C., 73 F.Supp. 390. Thereafter, by order of court, the fund was deposited at interest, and certain accretions have accumulated.

That action abated by reason of the failure to substitute as a party thereto the successor to the Attorney General who instituted the action, under the provisions of Rule 25(d), Federal Rules of Civil Procedure, and by stipulation, that action was dismissed on June 18, 1952.

The war between the United States and Germany was officially terminated by a Joint Resolution of Congress approved October 19, 1951, Public Law 181, 82nd Cong., 65 Stat. 451, and the Proclamation of the President of October 24, 1951, Proclamation 2950, 50 U.S.C.A.Appendix, p. xx, pursuant thereto.

Thereafter, this action was instituted on June 18, 1952, by James P. McGranery, Attorney General, as successor to the Alien Property Custodian, against the executors of Shirley M. Suhling, and Thomas Fuller Torrey as an individual. Subsequently, the present Attorney General, Herbert Brownell, Jr., has been substituted as plaintiff.

In addition to the foregoing facts, the parties have stipulated that, if two of the surviving sisters of Mrs. Suhling were to testify, they would say, in effect, that Mrs. Suhling was aware of the difficulties involved in giving money to German citizens during a war period, and that if such a gift were made during a war period it was liable to be confiscated by the United States Government, that she knew that such difficulties existed longer than the period of hostilities and existed until the official termination of the war, and that such difficulties had been brought particularly to the attention of Mrs. Suhling and other members of her family because of the fact that her husband undertook to set aside money for a relative in Germany during World War I, which was confiscated by the United States Government, and her husband had to sue to get his money back. Further, that Mrs. Suhling visited Bremen in 1921, and observed the unsettled condition of the family's financial affairs resulting from the war, even at that date.

Plaintiff, in his complaint, demands judgment that he is entitled to payment of the fund, with its accretions, here in controversy, with costs, and has filed his motion for a summary judgment. The defendants having demanded judgment, either that the legacy here in controversy is void and the fund therefore payable to the defendant Thomas Fuller Torrey as residuary legatee and sole distributee of the testatrix, or that it is payable to the German relatives of Johannes Suhling, have filed their motion for a summary judgment in their behalf.

In the predecessor action, Clark v. Edmunds, supra, after discussing at some length the questions involved, I arrived at the following conclusions, 73 F.Supp. 394:

"I am satisfied that the intention of the testatrix here was to make this bequest upon a condition precedent. The testatrix made a number of relatively small bequests to close friends and relatives. However, the great bulk of her estate was left to her only son. The bequest in controversy evidenced her desire to do something for her deceased husband's family. However, it appears clear from the affidavits filed in opposition to this motion that she knew that she was powerless to help them during the continuation of the war, and it seems to me clearly inferable that it was her intention to provide only for those who survived. It would seem to follow that no beneficiary would take anything unless he or she survived the war. If no beneficiary survive, then this bequest would lapse and become a part of the residuary estate. Therefore, conceding that the Custodian has acquired all the right, title and interest of all the beneficiaries, he nevertheless was not entitled to the fund or any part of it at the time of his vesting order, nor is he so entitled now. He must await the termination of the war to determine whether or not the interests which he seized will be entitled to the fund or not. A similar conclusion was reached by the Court in Re Kielsmark's Will, 188 Iowa 1378, 177 N.W. 690, 11 A.L.R. 156.

"Upon the termination of the war, when it can be determined which, if any, of the German legatees have survived, there are a number of questions which may or may not arise. It is not my purpose at this time to undertake to answer them or even to state them. I do now hold (and only hold) that the plaintiff by virtue of the vesting order acquired as of the date of the order, all the right, title and interest of the German legatees in and to the fund here in controversy, but that as the bequest is upon a contingency which cannot be determined until the termination of the war, the plaintiff is not now entitled to an award of the fund. It follows that an order will be entered overruling plaintiff's motion for a summary judgment awarding him the fund."

Inasmuch as the war between the United States and Germany has now officially come to an end, it would seem that the time has come for the determination of the proper and legal disposition of the fund here in controversy. It is to be borne in mind that the vesting order which is the basis of plaintiff's action was a right, title and interest vesting, and not a vesting of the res itself, which remains in the registry of this court. The two forms of vesting order are discussed at some length in my former opinion.

It seems to me that the proper determination of this case depends primarily upon the proper construction to be given to Mrs. Suhling's bequest here in controversy. The plaintiff contends:

"The pertinent language of the will may be fairly construed to be a bequest of $20,000.00 to the members of the

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