Brownell v. Union & New Haven Trust Co.

• Citation: 143 Conn. 662,124 A.2d 901
• Court: Supreme Court of Connecticut
• Decision Date: 24 July 1956
• Parties: Herbert BROWNELL, Jr., Attorney General of the United States of America v. The UNION AND NEW HAVEN TRUST COMPANY, Administrator D.B.N., C.T.A. In re ESTATE of Anna E. HARTMANN. Supreme Court of Errors of Connecticut

Page 901

124 A.2d 901

143 Conn. 662

Herbert BROWNELL, Jr., Attorney General of the United States of America v. The UNION AND NEW HAVEN TRUST COMPANY, Administrator D.B.N.,

C.T.A. In re ESTATE of Anna E. HARTMANN.

Supreme Court of Errors of Connecticut.

July 24, 1956.

Myron C. Baum, Washington, D. C., of the District of Columbia bar, with whom were Henry C. Stone, Asst. U. S. Atty., Hartford, Conn., and, on the brief, Dallas S. Townsend, Asst. Atty. Gen., Simon S. Cohen, U. S. Atty., Hartford, Conn., James D. Hill, Washington, D. C., of the Iowa bar, George B. Searls, Washington, D. C., of the District of Columbia bar, and Westley W. Silvian, Washington, D. C., of the Minnesota bar, for appellant (plaintiff).

Jeremiah D. Shea, New Haven, Conn., for appellee (defendant).

Before BALDWIN, O'SULLIVAN, WYNNE and DALY, JJ., and COMLEY, Superior Court Judge.

BALDWIN, Associate Justice.

On January 28, 1952, the plaintiff, attorney general of the United States and successor to the alien property custodian, acting under the authority conferred upon him by an act of Congress known as the Trading with the Enemy Act, 40 Stat. 411, as amended, 50 U.S.C.App. §§ 1-40 (Sup.1956) [50 U.S.C.A.Appendix, §§ 1-40], and by presidential executive orders made pursuant thereto, issued an order which purported to vest in himself immediately the interests of certain German nationals who were legatees under the will of Anna E. Hartmann, deceased. Vesting Order No. 18727, 17 Fed.Reg. 976. The plaintiff claimed that their shares in the estate were property which should be delivered to him by virtue of this order, a copy which was filed in the Probate Court for the district of Middletown. The Probate Court treated the vesting order and a letter of transmittal accompanying it as an application for an order of distribution to the plaintiff and refused to issue the order. The plaintiff appealed to the Superior Court, which rendered judgment sustaining the Probate Court. The plaintiff has appealed from this judgment.

The facts are not in dispute. Anna E. Hartmann, a Middletown resident, died testate on September 8, 1922, leaving her husband, Peter Hartmann, surviving. She named him as executor of her will and gave her estate to nephews and nieces, children of her two sisters, subject to a life use in her husband. One of the sisters was then living and the other was deceased. Peter died in West Haven on August 2, 1948. His will was duly probated, and his executor surrendered the property which he had held as a life tenant to the estate of his wife, Anna. On December 27, 1949, upon the application of The Union and New Haven Trust Company, administrator d.b.n., c.t.a., and after due notice, the Probate Court for the district of Middletown made an ascertainment of the distributees of Anna's estate, together with their respective shares, but failed to order distribution to them. These distributees, Anna's nephews and nieces, were, with two exceptions, German nationals residing in Germany.

The Probate Court, in refusing to issue an order of distribution to the plaintiff, ruled, in effect, that the decree of December 27, 1949, ascertaining the distributees of Anna's estate determined the question of the title of the legatees and rendered res adjudicata the question who is entitled to distribution. The first decisive issue is whether the Probate Court was correct in that ruling. If it was not, the second decisive issue is whether it was required to act upon the vesting order filed by the plaintiff.

Our probate courts have a limited jurisdiction. Their powers are conferred by statute. General Statutes, § 6813; 1 Locke & Kohn, Conn. Probate Practice, § 38. No question of the jurisdiction of the Probate Court over the parties or the subject matter is raised here. Unquestionably, the court had the power to enter a decree ascertaining the distributees under Anna's will and ordering distribution to them. General Statutes, § 7056; Killen v. Klebanoff, 140 Conn. 111, 117, 98 A.2d 520; Culver v. Union & New Haven Trust Co., 120 Conn. 97, 102, 179 A. 487, 99 A.L.R. 663. The court also had the jurisdiction and the power to determine incidental questions so far as necessary to enable it to reach a correct conclusion in the administration of the estate. General Statutes, § 7056; Mack's Appeal, 71 Conn. 122, 130, 41 A. 242; 1 Locke & Kohn, op. cit., p. 173; Ministers & Missionaries Benefit Board, etc., v. Meriden Trust & Safe Deposit Co., 139 Conn. 435, 449, 94 A.2d 917; Culver v. Union & New Haven Trust Co., supra; Chase National Bank of New York City v. Schleussner, 117 Conn. 370, 376, 167 A. 808. A probate court may find to whom title belongs, but only, in a case such as the one at bar, as an incidental step in exercising its power to determine distributees and order distribution. The legality of the conclusion reached by the court on the question of title can be attacked later in an independent proceeding in a court properly exercising legal and equitable powers. Homer's Appeal, 35 Conn. 113, 114; Hewitt's Appeal, 53 Conn. 24, 37, 1 A. 815; Mack's Appeal, 71 Conn. 122, 131, 41 A. 242; Wilson v. Warner, 84 Conn. 560, 565, 80 A. 718; 1 Locke & Kohn, op. cit., §§ 90, 93, 140-141, 155; 2 id. § 596.

The decree of December 27, 1949, did not order distribution but merely purported to ascertain distributees. The ascertainment of distributees is incidental to an order of distribution. Mack's Appeal, supra, 71 Conn. 129, 41 A. 242; Hotchkiss' Appeal, 89 Conn. 420, 429, 95 A. 26; Slattery v. Woodin, 90 Conn. 48, 52, 96 A. 178. Standing alone, it is improper and unnecessary. Chase v. Benedict, 72 Conn. 322, 328, 44 A. 507; 2 Locke & Kohn, op. cit. §§ 596, 605. We conclude that the decree of December 27, 1949, did not make the issue of title to the distributive shares res adjudicata and that the failure of the Probate Court to include an order of distribution leaves the matter of distribution still subject to an order of that court.

We pass now to consideration of the second issue. The plaintiff claims that the Probate Court should order distribution to him. He argues that, irrespective of its powers under Connecticut law, the Probate Court, as a matter of constitutional law, is bound to enforce his vesting order. An act of Congress and executive orders authorized, as a war measure, the appointment of an alien property custodian who was directed and empowered to seize property of every description in the United States belonging to the nationals of every country with which our country was at war. 40 Stat. 415, 418, as amended, 50 U.S.C.App. §§ 5(b)(1), 6, 7(c) [50 U.S.C.A.Appendix, §§ 5(b)(1), 6, 7(c)]; Exec. Order No. 9095, 3 C.F.R.Cum.Sup. (1943) 1121, as amended, Exec. Order No. 9193, 3 C.F.R.Cum.Sup. (1943) 1174, 50 U.S.C.A.Appendix, § 6 note. Section 2(f) of the last cited executive order gave the alien property custodian power to vest in himself, for the United States, 'any property of any nature whatsoever which is in the process of administration by any person acting under judicial supervision * * * and which is payable or deliverable to, or claimed by, a designated enemy country or national thereof.' This power was transferred to the attorney general of the United States by Executive Order No. 9788. 3 C.F.R.Sup. (1946) 169, 50 U.S.C.A.Appendix, § 6 note. It was pursuant to the authority conferred upon the plaintiff by statute and order that he purported, on January 28, 1952, to seize the interests of those of Anna's legates who lived in Germany by issuing, in the usual course, vesting order No. 18727. 17 Fed.Reg. 976.

In the exercise of war powers, Congress and the president can, unhampered by constitutional provisions concerning due process and just compensation, divest the title of property located in the United States and owned by enemy nationals. Silesian-American Corporation v. Clark, 332 U.S. 469, 476, 68 S.Ct. 179, 92 L.Ed. 81; Cummings v. Deutsche Bank, 300 U.S. 115, 120, 57 S.Ct. 359, 81 L.Ed. 545; Commercial Trust Co. of New Jersey v. Miller, 262 U.S. 51, 56, 43 S.Ct. 486, 67 L.Ed. 858; Todeva v. Oliver Iron Mining Co., 232 Minn. 422, 430, 45 N.W.2d 782; Matter of Bendit's Estate, 214 App.Div. 446, 450, 212 N.Y.S. 526; Bunzen v. Davis, 36 Wash.2d 778, 780, 220 P.2d 653. Courts have construed the seizure provisions of this legislation most liberally. Cities Service Co. v. McGrath, 342 U.S. 330, 333, 72 S.Ct. 334, 96 L.Ed. 359; United States v. Chemical Foundation, Inc., 272 U.S. 1, 10, 47 S.Ct. 1, 71 L.Ed. 131. It has been held to apply to all kinds of property. Mutzenbecher v. Ballard, D.C., 16 F.2d 173, affirmed, 2 Cir., 16 F.2d 174 (chose in action); In re Estate of Zimmermann, 132 Cal.App.2d 702, 283 P.2d 68 (claim to funds deposited in the state treasury for want of known heirs); Todeva v. Oliver Iron Mining Co., 232 Minn. 422, 430, 45 N.W.2d 782 (workmen's compensation award); Miller v. Lautenburg, 239 N.Y. 132, 145 N.E. 907 (inchoate right of dower); Matter of Bendit's Estate, supra (interests in a spendthrift trust). In Commercial Trust Co. of New Jersey v. Miller, 262 U.S. 51, 56, 43 S.Ct. 486, 488, 67 L.Ed. 858, the alien property custodian had instituted suit to seize the property of enemy nationals. The court said: '[T]he suit is of as peremptory character as 'seizure in pains' and is the dictate and provision for the emergency of war, not to be defeated or delayed by defenses; its only condition, therefore, being the determination by the Alien Property Custodian that it was enemy property.'

The effect of a vesting order is to divest title in the enemy national and transfer it to the alien property custodian. Central Union Trust Co. of New York v. Garvan, 254 U.S. 554, 569, 41 S.Ct. 214, 65 L.Ed. 403. The powers conferred by the federal act and the presidential executive orders relating to such seizures were terminated as of October 19, 1951, by joint resolution of Congress and proclamation of the president, except as t...