Clostermann v. Schmidt
| Decision Date | 10 December 1958 |
| Citation | 332 P.2d 1036,215 Or. 55 |
| Parties | Robert G. CLOSTERMANN, as the executor of the last will and testament of Friedrich Georg (George) Gottlob Schmidt, also known as F. G. G. Schmidt, deceased, Respondent, v. Emmy SCHMIDT; Robert D. Holmes, Governor of the State of Oregon; Mark O. Hatfield, Secretary of State of the State of Oregon; Sig Unander, State Treasurer of the State of Oregon, all as members of and constituting the State Land Board of the State of Oregon, Respondents, William P. Rogers, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant. |
| Court | Oregon Supreme Court |
Irwin A. Seibel, Washington, D. C., argued the cause for appellant. With him on the brief were Dallas S. Townsend, Asst. Atty. Gen., C. E. Luckey, U. S. Atty., for the District of Oregon, Portland, Valentine C. Hammack, Sp. Asst. to Atty. Gen., James D. Hill, Washington, D. C., and George B. Searls, Washington, D. C.
A. G. Clostermann, Portland, argued the cause for respondent Robert G. Clostermann. With him on the brief was Robert G. Clostermann, Portland.
Catherine Zorn, Asst. Atty. Gen., argued the cause for respondent State Land Board of the State of Oregon. With her on the brief was Robert Y. Thornton, Atty. Gen.
Before LUSK, P. J., and WARNER, SLOAN and O'CONNELL, JJ.
This is an appeal by the defendant Attorney General of the United States, acting in his capacity as the Alien Property Custodian, pursuant to the Trading with the Enemy Act (50 U.S.C.A.Appendix, § 1 et seq.), and to whom we will hereinafter refer as 'the Custodian.' It has its origin in a proceeding for a declaratory judgment initiated by Robert G. Clostermann, as executor of the last will and testament of Friedrich Georg Gottlob Schmidt, to determine whether legal and actual reciprocity existed between the United States and Germany on the date of Schmidt's death, as required by § 61-107, O.C.L.A. (Oregon Laws 1937, ch. 399, p. 607). The resulting decree was in fover of the executor; that is, that there was no reciprocity existing as of April 24, 1945, between the two countries so as to entitle a German alien beneficiary to take a legacy of personal property provided by the Schmidt will.
The present defendant-respondents, Robert D. Holmes, Mark O. Hatfield and Sig Unander, are, respectively, the Governor, Secretary of State and State Treasurer of the state of Oregon, who, together comprise the State Land Board, and who were duly substituted in this matter for their respective predecessors in said offices, the original defendants, Douglas McKay, Earl T. Newbry and Walter J. Pearson. The State Land Board would be the recipient of decedent's property in the event of an escheat. That issue, however, is not before us.
The controlling statute, § 61-107, 1 O.C.L.A., supra, which the court is called upon to construe, and hereinafter referred to as the reciprocity statute, reads as follows:
(Emphasis ours.)
When Schmidt died, in Eugene, Oregon, he was a citizen of the United States and World War II was still in progress. The defendant Emmy Schmidt, his legatee, was a citizen of Germany, and at that time residing in Hof an der Saale, a community in West Bavaria, which lies about 15 miles west of the city of Asch. Hof had been officially taken by elements of the U. S. Third Army on April 15, 1945, nine days before the death of decedent-testator. The complete subjugation and surrender of Germany did not occur until May 8, 1945.
In September, 1947, and before the closing of the probate of the Schmidt estate, the Custodian issued a vesting order, purporting to vest the interest of Emmy Schmidt, if any, in the estate, as an enemy alien. But its effectiveness depends upon the existence of reciprocity between Germany and the United States as defined by § 61-107, O.C.L.A., supra, as of April 24, 1945.
On September 18, 1944, General Eisenhower, as the Supreme Commander of the AFE, issued a proclamation to the German people outlining policies of the Allied Forces to be enforced in German areas occupied by the allied troops. This proclamation, among other things, declared the intention of the allies to wipe out the 'cruel, oppressive and discriminatory laws and institutions' created by Nazism. This intent was implemented by a series of Military Government Laws known as No. 1 and No. 2, likewise issued in September, 1944, and other military documents.
The Custodian takes the position that coincident with the investiture of Hof an der Saale by American troops on April 15, 1945, German laws of the Nazi regime restricting reciprocity as contemplated by § 61-107, O.C.L.A., supra, were immediately repealed and all laws of a reciprocal nature relating to inheritance by aliens existing prior to the Nazi domination, were concurrently restored and were in effect in Hof and its immediate environs as of April 24, 1945.
This claim of the Custodian rests upon the Eisenhower proclamation above referred to and subsequent documents issued pursuant thereto. He also depends upon the testimony of Ernest J. Hill, the government's sole witness. Mr. Hill, prior to his admission as a member of the bar of California, in 1927, was a lawyer in and resident of Germany. At no time from 1941 to 1945 (the war period) was he in Germany, and he frankly disclaimed to speak as an expert in American Military Law. He thereby limits the value and scope of his testimony as an expert to his claim of knowledge as to what was the status of German reciprocity law in Hof as of April 24, 1945. Without a knowledge of American Military Law, he could not arrive at sound or safe conclusions respecting the construction of the Eisenhower proclamations and later military pronouncements implementing the same and their impact, if any, upon Hof and its environs as of April 15, 1945. We have no occasion to discredit his knowledge of German law as it existed prior to the incoming of the Nazi government or thereafter up to April 15, 1945. In this respect, We find his views to some extent in accord with our holding in In re Estate of Krachler, 1953, 199 Or. 448, 263 P.2d 769. But we cannot give the same weight to what he has to say concerning the impact of military pronouncements upon German law, when made prior to April 24, 1945.
Moreover, we are not persuaded that the military statements upon which the Custodian relies reach the matter of reciprocity. In our view, the matter and things held out to the Germans by the proclamation of September 18, 1944, and upon which the Custodian places his prime reliance, were prospective in accomplishment; that is, they were to be effective only upon German surrender. As we have noticed, that did not occur until May 8, 1945.
Until that date, our troops were in active forward movement as belligerents and their occupation of towns and communities such as Hof required no greater change in the application of foreign law in a given area invested by them than was necessary to the maintenance and safety of our forces and the immediate purposes of the war. 2 Oppenheim's International Law, 7th Ed., Lauterpacht 1952, 437, § 169. It is a conclusion consonant with the rules of our own military government and when such occupation, as at Hof, was at best only provisional until the time of the enemy surrender. U. S. Army Field Manual 27-10, Rules of Land Warfare, paras 275, 276. Such was the actual pattern followed by our armies according to Harold Zink, who was present in Germany as a military government staff officer during the critical period. Zink, American Military Government in Germany, p. 57. See, also, the article in 32 Minn.Law Rev. 319, entitled 'Some Observations on Military Occupation,' by Col. Charles Fairman, Professor of Law and Political Science, Stanford University, and during the war Chief of International Law Division, Judge Advocate Section, Hq. ETO, November, 1944 to November, 1945. The record satisfies us that reciprocity did not exist in Germany as of the date of Mr. Schmidt's death.
But it is unnecessary for us to expand by further statement why, in our opinion, the Custodian's dependence upon the military documentation is untenable. Even if we assume for the sake of argument, and as the Custodian contends, that the capture of Hof by American troops two weeks prior to decedent's death gave rise to reciprocity of a kind in that limited area of German territory, it was, nevertheless, not of a kind or quality which would satisfy the standards established by § 61-107, O.C.L.A., so as to entitle Emmy Schmidt to take the legacy provided by her cousin's will.
By the thrust which is given to the proposition of reciprocity arising in Hof by the presence of the American army, the Custodian presupposes that reciprocity within the statute may be forthcoming from a mere territorial 'area,' less than the whole of the country of which it was a part, and in contrast to an international entity in the metaphorical sense. He argues that since reciprocal treatment to American citizens is the statute's overriding theme, the Oregon legislature...
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