Miller v. Rouse

• Decision Date: 22 November 1921
• Citation: 276 F. 715
• Parties: MILLER, Alien Property Custodian, v. ROUSE et al.
• Court: U.S. District Court — Southern District of New York

276 F. 715

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

United States District Court, S.D. New York.

November 22, 1921

George Winship Taylor, of Baltimore, Md., for Alien Property custodian.

John M Stoddard, of New York City, for executors.

LEARNED HAND, District Judge.

Two demands were made on the executors on September 23, 1919. One of these determined that there was a 'certain obligation and indebtedness represented by a certain indebtedness in the sum of $4,500,' which the Alien Property Custodian thereupon demanded. The respondents object that this debt of $4,500 was an unexecuted gift. Perhaps so, but the Custodian has determined that it was a debt, and his determination is conclusive for the purposes of this motion. Central Trust Co. v. Garvan, 254 U.S. 554, 41 Sup.Ct. 214, 65 L.Ed . . . Section 5 of the resolution of July 2, 1921, preserves the right of the United States to such property, and this proceeding is merely to enforce the capture so made. So much of the motion is granted.

To the legacy of $10,000 different considerations apply. The other demand made on the 23d day of September, 1919, determined that the alien, Ruth Marcuse, had 'a certain right title, and interest as a beneficiary under the will of Callman Rouse,' and this was duly demanded, the demand operating as a capture, just as did the other of even date. However, this capture did no more than substitute the Custodian in the place of the beneficiary; it did not profess to determine what her rights were as such, and in the absence of such determination there is no specified fund or obligation on which the capture can operate. The capture has put the Custodian in the place of Ruth Marcuse, but he must work out his rights in accordance with the determination; he becomes entitled to all rights which she had as beneficiary under the will of Callman Rouse and no more. Kahn v Garvan (D.C.) 263 F. 909, 912. No summary order can go on that demand; the Custodian is merely a legatee under the will.

Still a third demand was served on the executors, this one on July 5 1921, three days after the declaration of peace as now promulgated by the President's recent proclamation. This demand was signed before July 2, 1921, and determined that a 'certain obligation and indebtedness, consisting of a bequest of $10,000 * * * is by you owing' Ruth Marcuse. I may assume that, as this determined that a legacy was 'owing,' it meant immediately owing, and that it was the equivalent of deciding that there was a debt due from executors. If the demand was valid when made, an order should go upon it, and the question therefore is presented whether the Custodian had that right on July 5, 1921.

The case therefore comes down to this: Was the capture completed by the signing of the demand or must it be served? The word 'demand' does not appear in the act (Comp. St. 1918 Comp. St. Ann. Supp. 1919, ...