Sarthou v. Clark, Civ. No. 408-ND.

Citation78 F. Supp. 139
Decision Date02 June 1948
Docket NumberCiv. No. 408-ND.
CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
PartiesSARTHOU v. CLARK.

W. H. Wadsworth, of Los Angeles, Cal., for plaintiff.

James M. Carter, U. S. Atty., Ronald Walker, Asst. U. S. Atty., and Clyde C. Downing, Asst. U. S. Atty., all of Los Angeles, Cal., for defendant.

McCORMICK, District Judge.

This is a suit in equity brought under the authority of Section 9 of the Trading with the Enemy Act, as amended, hereinafter called the Act. 50 U.S.C.A.Appendix, § 189 et seq. The plaintiff predicates his claim specifically under Subsection (d) of Section 9 of the Act.

As a result of pretrial under Rule 16, Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, many of the initial questions projected by the pleadings have been determined, as will appear from the pretrial order entered herein May 21, 1947, to which reference should be made for further details.

Plaintiff is the executor of the Last Will and Testament of Paul von Neindorff, deceased. The Will is holographic. It was executed at Budapest, Hungary, where von Neindorff was temporarily living on June 11, 1941. The Will has been duly admitted to probate under applicable laws of the State of California, in the Superior Court of the County of Tulare in such State.

The relief that is sought herein by the plaintiff as executor is the return to him for administration of two citrus-producing ranches situate in Tulare County, California, and other property, all of which is devised by von Neindorff in the Will of June 11, 1941. At present the ranches and the other property involved are vested in the Alien Property Custodian by seizures under vesting order Number 2841, executed December 1, 1943, and supplemental vesting order Number 3774, issued June 7, 1944.

The case presents peculiar activities and attitudes of Paul von Neindorff, the central personality under scrutiny, during his presence in Europe from about the middle of the year 1939 to his death there on November 15, 1944, at a hospital at Salzburg, to which he had been removed about one week before from a concentration camp at Laufen, Germany.

Paul von Neindorff was born of German parents at St. Legier, Switzerland, on January 30, 1870. His father was a military commandant at Graudenz, a town in West Prussia, and his paternal grandfather was Commanding General of the Prussian Artillery. As a boy of ten Paul von Neindorff entered the Cadet Institute in Bensberg, later going to a cadet institute at Potsdam. He came to America in 1887, and lived in the United States after that time except when periodically visiting Europe, and toward the latter part of his life he went there yearly. He was a citizen of the United States through naturalization on June 2, 1896. He was married, and with his wife Margaret, who was ill and bedridden at the time, he went to Wiesbaden, Germany in 1939. Leaving Mrs. von Neindorff in the care of a nurse, Auguste Suess, at Wiesbaden, he came to California in 1940, and after staying in the United States about six months, returned to Wiesbaden in October, 1940. Through one Staab he contacted Heinz Jennewein, at that time in charge of Military District XII of Secret Intelligence Service of the German Army at Wiesbaden. After investigation, in the fall of 1940, von Neindorff accepted employment in such activity, and having been given an undercover name, "Narcisse," was assigned missions in various countries in Europe outside of Germany in counter intelligence work for the German Army. These he indisputably completed at different times in the year 1941, at least up to the entry of the United States into the war in December, 1941, and while there is much evidence, both documentary and by oral testimony, that he continued such undercover counter espionage in January, 1942, the central problem before us is as to the probability of such activities under all of the evidence before the court.

Von Neindorff remained in Wiesbaden upon completion of his counter espionage work until his arrest by German authorities in July, 1942, and after that time until his death he was a prisoner for offenses against the German government of which he was convicted in courts of the Nazi regime.

There are some inscrutable situations and conflicting characteristics shown by the record before us relating to this odd individual, and the problem of judicially determining the legal status of Paul von Neindorff under the provisions of the Trading with the Enemy Act is not without its difficulties. However, by keeping clearly in mind the restrictions on the legal right to successfully sue the United States that are expressly provided for in Section 9 and the concomitant definitions of status contained in Section 2 of the Act, we have been unable under the record before us to conclude that the plaintiff-executor has sustained the burden of proving that Paul von Neindorff was not an "enemy" or "ally of enemy" at the time of and after the entry of the United States in the war against Nazi Germany. Cf. Clark v. Uebersee Finanz-Korporation, 332 U.S. 480, 68 S.Ct. 174. And while the ultimate crucial issue in this case is whether Paul von Neindorff was an "enemy" or "ally of an enemy" of the United States as defined in Section 2, subdivisions (a) and (b) of the Act, to decide such issue the court must from the preponderance of the evidence consider and answer two subsidiary questions: (1) Was Paul von Neindorff a resident of Germany during World War II, as the term "resident" is used in the Act and as it has been interpreted by the courts?; and (2) Was Paul von Neindorff an officer, official or agent of the government of any nation with which the United States was at war during the period from December 11, 1941 to November 15, 1944, the date of his death?

We think "resident within the territory" as employed in the Act connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. It is a habitation having domiciliary properties. Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644; Vowinckel v. First Federal Trust Co. et al., 9 Cir., 1926, 10 F.2d 19; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 45 A.L.R. 895.

Measured by such standards, Von Neindorff in the light of the factual situation shown by the record before us cannot be held to have at any time manifested a clear intention to change his domicile from California to Europe. His migratory and visitor habits of spending several months of each year in Europe began about 1923 and were consistently terminated and concluded throughout his life by regularly returning to California and devoting his attention to and living near his Tulare County properties, whereon he and his wife had established their home early in 1930. Even after his final visit to Germany, which began in 1939, he returned to Tulare County in 1940 to look after his affairs, and while there he evinced what may be characterized as a most forceful expression of his intention to retain a domicile in California by registering as a voter and stating his residence as Number 563 Monroe Avenue, Porterville, Tulare County, California, — a place which he had made his home with Mr. Sarthou, the plaintiff herein, since 1937.

The transitory movements and acquisition of housing facilities in Europe, while material for considering his residential status under the Act, cannot be said to outweigh the uniform and positive classification of himself as residing in Porterville, California, in formal instruments and documents pertaining to himself, his activities and his property interests in Germany and in California.

When all the evidence, including the decree of the State court admitting the Will of November 11, 1941, to probate in Tulare County, California, is considered, it is clear that Paul von Neindorff was not a resident of Germany within the meaning of the Act under consideration in this case, and the court so finds.

We turn to consider subsidiary question (2), which is, concretely: Was Paul von Neindorff an officer, official or agent of the government of Germany at any time between December 11, 1941, the date of the Axis declaration of war against the United States, and November 15, 1944, the date of the death of Paul von Neindorff?

Primarily, we have for decision rulings on the admissibility of certain writings of Paul von Neindorff intended apparently for but never actually delivered to his attorney. It is contended by plaintiff-executor that such writings should be excluded as confidential communications between attorney and client. We think it not clear that the questioned writings were regarded by von Neindorff as confidential, and such essential factor being of doubtful existence, exclusion from consideration by the court in this action is not warranted. Exhibits BB and BB-1 and Z and Z-1 are therefore admitted in evidence. See Mission Film Corp. v. Chadwick Pictures Corp., 207 Cal. 386, 278 P. 855; People v. Hall, 55 Cal.App.2d 343, 130 P.2d 733.

One other document, defendant's Exhibit DD and its English translation Exhibit DD-1 are also objected to by the plaintiff. This exhibit is a certified copy of an opinion and decision of the Special Court for the District of the Superior State Court at Frankfort on the Main in a criminal case against von Neindorff in such court at a session of June 5, 1944, at Wiesbaden, Germany. The purpose of the offer was stated to be to identify the German court, its members, the charges against von Neindorff and the outcome of a second criminal proceeding against him in June, 1944. Inasmuch as there is other evidence in the record reflecting such matters sufficiently, we regard the proffered document as far as relevant to be merely cumulative and surplusage, and plaintiff's objections to Exhibit DD and DD-1 are sustained.

We have earlier in this memorandum alluded to the mysterious...

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