Markham v. Gorder, 13018.

• Decision Date: 27 August 1945
• Docket Number: No. 13018.,13018.
• Citation: 150 F.2d 894
• Parties: MARKHAM, Alien Property Custodian, v. GORDER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

150 F.2d 894 (1945)

MARKHAM, Alien Property Custodian, v. GORDER et al.

No. 13018.

Circuit Court of Appeals, Eighth Circuit.

August 27, 1945.

Albert Parker, Sp. Asst. to Atty. Gen. (Herbert Wechsler, Asst. Atty. Gen., Harry LeRoy Jones and Warren F. Wattles, Sp. Assts. to Atty. Gen., and George Philip, U. S. Atty., of Rapid City, S. D., with him on the brief), for appellant.

Alex Rentto, of Deadwood, S. D. (W. G. Rice, of Deadwood, S. D., on the brief), for appellees.

Before STONE, GARDNER, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

The action is one by the Alien Property Custodian¹ against the trustees under the will of Christina Louise Peterson, who died in 1940 bequeathing part of her estate in trust for eight German nationals and five Danish nationals, "said trust to continue until the cessation of hostilities between France, England and Germany and at said time or as soon thereafter as practicable said trust shall be distributed to the parties * * * named." By Vesting Order No. 651, dated January 9, 1943, and published on January 19, 1943, 8 Fed.Reg. 893, the Custodian had vested in himself "all right, title, interest, and claim of any kind or character whatsoever" of the eight German nationals in the trust. The purpose of the present action was to confirm the Custodian's right and title under the vesting order to the interests of the German beneficiaries and to obtain an order requiring the trustees "to deliver to the plaintiff the entire corpus and accumulated income constituting the shares of said German nationals."

The case is here on an appeal by the Custodian from the order made on his motion for judgment on the pleadings. The trial court, in its findings and conclusions, held that the Custodian had legally succeeded to "all rights, interests and shares" of the German nationals in the trust fund and was entitled to a declaratory judgment to that effect, but that he should be denied any further relief in the action, because the court had "no power or jurisdiction to determine whether or not the Alien Property Custodian is presently entitled to payment of his interest in said trust fund, or whether said trust should be terminated with respect to the interests therein which have been acquired by the Alien Property Custodian."

The complaint shows that at the time the trustees had received the property from the probate court, on the completion of the administration of the decedent's estate, they had qualified as trustees in the Circuit Court of the 8th Judicial Circuit, Lawrence County, South Dakota, a state court of general equitable jurisdiction, and had since been administering the trust estate under the direction and control of that court. The Custodian concedes here that he was not entitled to an order from the federal court, such as his complaint demanded,...