Miller v. Herzfeld, 3197.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: BUFFINGTON, WOOLLEY, and DAVIS, Circuit
• Citation: Miller v. Herzfeld, 4 F.2d 355 (3rd Cir. 1925)
• Decision Date: 26 February 1925
• Docket Number: No. 3197.,3197.
• Parties: MILLER, Alien Property Custodian, et al. v. HERZFELD.

4 F.2d 355 (1925)

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

No. 3197.

Circuit Court of Appeals, Third Circuit.

February 26, 1925.

Walter G. Winne, U. S. Atty., of Hackensack, N. J., and Dean Hill Stanley and Adna R. Johnson, Jr., both of Washington, D. C., for appellants.

Harrison & Roche, of Newark, N. J. (Joseph H. Choate, Jr., of New York City, of counsel), for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a final decree adjudging that certain property held by the Alien Property Custodian belonged to Felix Herzfeld, and directing the plaintiffs in error, defendants below, to transfer and deliver the property to him.

Joseph Herzfeld was born in Germany, but became an American citizen and was admitted to practice law at the bar of the state of New York in January, 1881. He practiced for a while, but subsequently went to Germany, became a German citizen, and a member of the Reichstag. He had considerable property, consisting largely of stocks and bonds, in the United States, which was held by the New York brokerage firm of Herzfeld & Stern. "Herzfeld" was his brother, Felix Herzfeld. On February 6, 1917, three days after the severance of diplomatic relations between the United States and Germany, Joseph Herzfeld sent the following radiogram to Herzfeld & Stern: "Transfer account Felix." The firm transferred the account on their books, held for Joseph Herzfeld, to Felix Herzfeld. After the United States entered into the war with Germany, and it became necessary to report property held for alien enemies, Felix Herzfeld consulted counsel as to what he should do with the property transferred to him pursuant to the radiogram. He had nothing to indicate the intention of his brother, except the radiogram. Counsel advised him to report it as held in trust for his brother until the contrary appeared. This he did. Subsequently, upon demand, he transferred and delivered the property to the Alien Property Custodian.

After the war, Felix Herzfeld, in accordance with the provisions of section 9 of the Trading with the Enemy Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115½e), filed with the Alien Property Custodian a notice under oath of his claim to the property and instituted suit in the District Court to establish his title to it. Joseph Herzfeld testified that it was his intention, in sending the radiogram, to make an absolute gift of the property to his brother; that it was his, and no one else had any interest in or title to it. The court decreed that the property belonged to Felix Herzfeld and directed that it be transferred to him. The defendants appealed from that decree.

The defendants contend that, assuming that Joseph Herzfeld intended to give the property to his brother, his intentions failed, because it was not accepted before it was seized by the Alien Property Custodian; that the beneficial ownership of the property was therefore, at the date of the seizure, in Joseph Herzfeld, and acceptance afterward...