The opinion of the court was delivered by: NEVIN
This is an action brought pursuant to the provisions of the Declaratory Judgment Act, T. 28 U.S.C. § 2201, and the Nationality Act of 1940, T. 8 U.S.C.A. § 903, for a declaratory judgment to the effect that plaintiff is, and always has been, a National and a citizen of the United States.
The action is properly brought and this Court has jurisdiction. Perkins v. Elg, 307 U.S. 325, 349-350, 59 S. Ct. 884, 83 L. Ed. 1320.
In her Amended Complaint, plaintiff prays 'for a judgment declaring that plaintiff is, and always has been, a national and citizen of the United States; that the instrument executed by her on December 12, 1933 did not and does not constitute an act of expatriation from the United States or a renunciation of her citizenship thereof under the provisions of Section 2 of the Act of March 2, 1907 (34 Stat. 1228); and that plaintiff is entitled to all rights and privileges as an American citizen of the United States; * * *'
Defendant, for the reasons alleged in his Amended Answer, asserts that plaintiff is not entitled to the relief sought. He asks for judgment dismissing the complaint and for his costs.
There is no disagreement as to substantially all of the facts. The facts are set forth in the court's Findings of Fact, hereinafter incorporated herein, and made a part of this Decision. It would be a work of supererogation to repeat them in too much detail here. However, a resume, as brief as possible, may be helpful to an understanding on what the court bases its ultimate conclusion.
The dispute between the parties is not so much as to what the facts are, but as to the inferences to be drawn from them; the law which applies to them, and as to the credibility of some of the witnesses. Here, as in all cases, the decision must rest on the facts of the case, as shown by the record and the law, as it applies to them.
In Savorgnan v. U.S., 338 U.S. 491, 70 S. Ct. 292, 293, 94 L. Ed. 287, the Supreme Court at the outset say: 'The question is whether, under the special circumstances of this case, a native-born American citizen who became an Italian citizen in 1940, and lived in Italy with her husband from 1941 to 1945, nevertheless retained her American citizenship'. (Italics ours.)
Plaintiff is a native born American citizen. She was born in New York City on June 4, 1914, the daughter of Dr. Ralph Waldo Lobenstine and his wife, Anne Muroe Williams Lobenstine, both of whom in turn, were themselves native American citizens. Dr. Lobenstine was born in Kansas; his wife in Syracuse, N.Y. Plaintiff has one brother, also a native born American citizen.
Dr. Lobenstine died on March 21, 1931. During this life, and at the time of his death, he was a man of some means. (On October 24, 1938, 'the assets constituting the principal of the trust shares for plaintiff, had a value of exactly $ 185,004.88' (Tr. P 405). At the time of her father's death, plaintiff was a minor. Her aunt, Miss Belle Lobenstine, and Mr. Henry Forster, both residents of New York City, were appointed executors and trustees of her father's estate.
Under her father's will, plaintiff was to receive the income from approximately one-half of the trust estate and to receive the principal thereof, one-half at the age of thirty, and the other half at the age of thirty-five.
Sometime prior to October, 1922, plaintiff's father and mother were divorced. In October, 1922, her mother married Henry Aylmer, a Canadian and thereafter, made her home in Montreal, Canada.
During her earlier years, plaintiff attended school in the United States. She graduated from Miss Shipley's School, Bryn Mawr, Pennsylvania, in 1931, having spent seven years there. From Miss Shipley's School she went to Vassar, where she remained for one year. After that she went to France to the Sorbonne. During these years she had studied French and attended courses in French at the Sorbonne. She arrived in France in 1932 at the beginning of the school year and while there, she met her future (and present) husband, Remi Boissonnas. They became engaged and were married in New York City on December 16, 1933.
Plaintiff desired, if possible, to have a civil marriage at the office of the French Consulate in New York. On October 30, 1933, plaintiff was in Montreal with her mother. On that date, plaintiff inquired by letter of the French Consulate in New York whether a civil marriage before a French Consulate officer could be arranged. By letter, dated November 2, 1933, a reply was sent to plaintiff from the French Consulate, suggesting some difficulties.
On November 5, 1933, plaintiff again wrote to the French Consulate in New York (Ex. 2) as follows: 'November 5th, Dear Sir, I just received your letter of the second concerning my marriage to Monsieur Remi Boissonnas. Before my marriage, I intend to declare my desire to become a french citizen. If I do this, is a civil marriage still impossible? I understand also that, by the new laws, I do not lose my american citizenship, but in any case, I plan to become french. Will you again be good enough to let me know about this? I am very sorry to bother you. Sincerely yours, (Miss) Mary Louise Lobenstine c/o Mrs. H. G. Locke, 1456 Crescent St., Montreal, Canada'.
In response to this letter, plaintiff received a reply from the Consul General for France in New York, dated November 8, 1933 (Exs. 3 and 3A) in which he states among other things that: 'The French Law in the case of a marriage between a person of foreign birth and a French citizen prescribes the following (I quote from the Decree of August 10, 1927, Art. 10):
(Par. 3) 'When the foreign woman who marries a Frenchman outside of France does not necessarily acquire the nationality of her husband through her marriage and intends to claim the French nationality, pursuant to article 8 of the law of August 10th, 1927, she must file a declaration to such effect with a French diplomatic or consular agent, before the marriage is performed.
(Par. 4) 'The interested party must submit, together with her birth certificate, the certificate of law provided by article 9 of the decree of August 10th, 1927. The declaration is made in triplicate; one copy is filed with the records of the Embassy, Legation or Consulate where the act has been executed; the second copy is given to the interested party, and the third copy is addressed to the Chancellery, together with an exemplified copy of the marriage certificate.
(Par. 5) 'It does not follow that if you sign the aforesaid 'declaration', a civil marriage will be possible at the Consulate, as it is a declaration of intention which becomes effective when the marriage has been celebrated and makes you acquire the French citizenship immediately upon completion of the marriage ceremony.
(Par. 6) 'The Certification de Coutume (Certificate of Law) above mentioned is delivered by a duly recognized American Attorney or Counsellor at Law, either a resident in Paris or a local one. This document to confirm the provision of the 'Cable Act' U.S. Federal Law September 22, 1922, Art. (Sec.) 3:
(Par.7) 'An American woman shall not cease to be an American as a result of her marriage, after the adoption of the present law, unless she expressly renounces her nationality before a tribunal having jurisdiction in matters of naturalizations of aliens. With this exception, any American woman who will marry a foreigner not susceptible to become a citizen of the United States shall cease to be an American.
(Par. 8) 'If you comply with the above as a consequence you will possess both the French and American nationalities.'
After the receipt of this letter, plaintiff did (on December 12, 1933) sign a document entitled 'Declaration' (Exs. 4, 4A and Y4) with which she submitted the documents required in Paragraph 4 of the letter of the Consul General, dated November 8, 1933 (Exs. 3 and 3A). There was, however, no civil marriage before the French Consul in New York, (Ex. T. P 8, Tr. P 62). Plaintiff was married 'at the Union Theological' in New York City.
The Consul General based his opinion (Ex. 3) on the words of the Cable Act, September 22, 1922, 42 Stat. 1022, namely, 'That a woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after the passage of this Act, unless she makes a formal renunciation of her citizenship before a court having jurisdiction over naturalization of aliens'.
Between 1925 and the time of her graduation from Miss Shipley's School, plaintiff spent two summers in Europe. In 1925, she obtained an American passport (Ex. a). In 1929, she obtained a new American passport to visit France, England and other countries in Europe. (Ex. T. P 2). In 1932, while at the home of her mother in Montreal, she applied to the American Vice-Consul at Montreal, Canada for renewal of her 1929 American passport (Ex. A). Her 1929 American passport was revalidated and she embarked for France to enter upon her studies at the Sorbonne.
On June 1, 1933, she was issued a new American passport at the American Consulate in Paris (Ex B), embarking from France to the home of her mother in Montreal. After her marriage on December 16, 1933, plaintiff obtained a French passport (Ex I; P 2 of Ex. U; P 8 of Ex. t), which she used as her 'travel document' in returning to France with her husband.
Thereafter, plaintiff was in possession, from time to time, of a French passport, which she always used, whenever traveling abroad, and an American passport, which she used when she wished to return to the United States.
This continued until December 19, 1944, on which date plaintiff was denied an American passport for which she had applied. (Ex. I).
In September, 1939, Germany and France were at war. The United States remained neutral. When France declared war in 1939, as a war time measure, everyone residing in France was required to obtain a carte d' Identite. Plaintiff obtained one as a French National. (P 2, Ex. U). On the application form to obtain the carte d' Identite, plaintiff could have claimed American citizenship, but did not do so, claiming French citizenship instead. Plaintiff became a member of the French Red Cross in 1939, prior to the time it was nationalized. She performed voluntary services as an Emergency Nurse, commencing in 1939. (P 2, Ex. U).
Plaintiff testified (Tr. Pp 303 et seq.)
'Q. (By Mr. Cunneen, of counsel for Defendant). Did you perform services in France for what you now call the International Red Cross? A. (Witness) Yes.
'Q. Did you work for the French Division of the International Red Cross? A. Yes.
'Q. And during the war, you were given a card of identity as a French National, were you not? A. I was given an identity card.
'Q. Describing you as French? A. As French, yes.
'Q. Who presented the card to you? A. The Prefect of Police of Sanlis, I think. I believe that it was in 1941, but that would be on the card.
'Q. And did you apply for a card of identity? A. Yes.
'Q. Did you fill out an application for such a card of identity? A. I do not remember exactly, but I must have.
'Q. Was there a place where you could claim to be an American subject or a Hungarian subject? A. Yes, of course.
'Q. Or an American citizen? A. Of course.
'Q. In applying for a French passport, did you claim to be an American citizen? A. No.
'Q. In filling out your card of identity, did you claim to be an American citizen? A. No.
'Q. Do you recall any application or any document that you filled out for the French Government in which you claimed to be an American? A. No.
The German Army entered Paris, June 14, 1940. Following the liberation of France in 1944 and the return thereto of the American Embassy, Plaintiff appeared at the American Consulate in Paris on December 19, 1944. Plaintiff applied for registration (P 1, Ex. I) and an American passport. Plaintiff was denied an American passport 'and it was at that time that they (the Vice Consul) told me (Plaintiff) that I was not an American citizen, which was the first time I had ever heard it mentioned' (Tr. Pp 65-66). Plaintiff left an affidavit in protest at the American Consulate in Paris. (Ex. I). In the meantime, the American Embassy in Paris had been furnished a photostatic copy of plaintiff's 'Declaration' of December 12, 1933, by the French authorities, (Ex. 5, Ex. I) from which the Embassy asserted that it had now discovered that plaintiff, in 1933, had voluntarily acquired French citizenship (Ex. 5).
Sometime after the war (probably in 1945) the French Government sought to reach the capital and income from plaintiff's American Trust, (P 18, Ex. T) and plaintiff and her husband were threatened with penalties if they did not answer certain questions propounded by the French Government.
The claim was made on behalf of plaintiff that the trust property in the United States was not subject to the wishes of the French authorities because she was an American citizen (Tr Pp 177-178). This controversy with the French Government was finally (in 1949) settled.
In 1946, plaintiff obtained a renewed French passport. Plaintiff and her husband visited the United States between June and November, 1946, she traveling on her French passport. While in the United States on that trip, plaintiff signed her U.S. Income Tax Returns for the years 1942, 1943, 1944 and 1945, (Tr. P 360), which had been prepared by the witness, Mr. Hassel, (Tr. P 359) on behalf of the Executors and Trustees of the Trust Estate. These returns were filed in the Collector's Office on October 28, 1946. In all the income tax returns prepared by Mr. Hassel, plaintiff was not held out as a nonresident alien tax payer. In the case of a nonresident alien, the tax on American income is higher. (Tr. Pp 367-370).
Sometime in September, 1947, plaintiff's uncle, Dr. E. C. Lobenstine, of his own accord and without plaintiff's knowledge at the time, after visiting the United States State Department, went to the French Consulate in New York, in order to see what had taken place in 1933. He asked for photostats of what had transacted that had a bearing on plaintiff's losing her American citizenship. (Tr. Pp 134-142). By letter, dated September 19, 1947, the French Consulate in New York, mailed three papers to Dr. E. C. Lobenstine (Ex. 9). These papers were a photostat of the certified copy of the Declaration of December 12, 1933, (Ex. 4); a photostat of a certified copy of a carbon of the letter of the French Consul General, of November 8, 1933 (Ex. 3) and a photostat of plaintiff's original letter (Ex. 2) to the French Consulate, of November 5, 1933.
Subsequently, Dr. Lobenstine made a second visit to the State Department and thereafter he inquired in New York whether the French Consulate at New York could annul the Declaration of December 12, 1933 (ab initio (Ex. 8).
On September 29, 1947, Dr. Lobenstine wrote the United States State Department that a French Consulate official stated that the Consulate itself had no such authority, but that the matter could be presented to the French Ministry of Public Health and Population, and he inquired whether the State Department would recognize plaintiff as American if the French Government annulled plaintiff's application for French citizenship, (Ex. 8).
By letter of November 18, 1947, the State Department advised (Ex. 5) 'In the absence of a decision of a competent court in an analogous case, it is the view of the Department that if the appropriate French authorities should cancel ab initio the naturalization of Mrs. Boissonnas as a French citizen, she could properly be held not to have lost her American citizenship under the provisions of Section 2 of the Act of March 2, 1907'.
Francois Monahan, a French lawyer in Paris retained by plaintiff's husband, on November 28, 1947 (Exs. 6 and 6A), requested the French Ministry of Public Health and Population to annul plaintiff's Declaration of December 12, 1933. The Ministry replying, (to Ex. 6) stated that the Declaration of December 12, 1933 was in 'perfect regularity' but the matter of recovery of plaintiff's American Nationality might be referred to the American authorities. (Exs. 7 and AA).
The Ministry of Public Health and Population is an administrative governmental agency (Tr. 490-1) since the French liberation, in charge of nationality matters in France, (Tr. 738-739).
The archives of the Ministry of Justice Department of Naturalization have been transferred to the Ministry of Public Health and Population (Tr. 739).
Plaintiff secured a new French passport in 1949 (Tr. 314). Traveling to the United States from France to attend the trial of this case, she was admitted on a Certificate of Identity (Tr. 316, 317 and 343) issued by the American Embassy in Paris.
Plaintiff has resided in France and made her home there ever since going to France immediately following her marriage. She was living in France with her husband and children, and had her home there when she came to the United States to testify at the trial of this case, intending to return to her home in France thereafter. (Tr. P 343).
Plaintiff herself has never claimed in any written document left with a French governmental official, to be an American citizen since she made her home in France with her husband (Tr. 308-310; Pp 1 and 2, Ex. U). However she testified that 'when anyone (in the community) asks me, I always say that I have dual nationality'.
Contentions of the Respective Parties
Certain facts are conceded. It is conceded that plaintiff was a minor, nineteen years of age at the time she signed the Declaration of December 12, 1933, (Ex. 4); that at that time, due to her previous education, she could read and understand French; and that she has never taken any Oath of Allegiance to France or any other country or Sovereign. The claims of the respective parties may be epitomized from the statements of their counsel.
Judge Finch (of counsel for plaintiff) (Tr. P 16, et seq.) stated 'So that is what you have; a mutual mistake of fact in signing this Declaration * * * it is a very common jurisdiction of equity to set aside a contract which was made under a mutual mistake of fact. That is what we are asking the court to do; to set aside this Declaration which admittedly in writing was signed under a mutual mistake of fact; * * * that is our case right in a nut shell'. Plaintiff 'executed a document which was done under a mutual mistake of fact and we ask that it be set aside and cancel it on the ground that it was executed under this mutual mistake of fact. * * * Now, then, that is just our case. The Attorney General says 'well, following this Declaration that she signed and the marriage that nationalized her as a French citizen'. We say that we do not know whether it naturalized her, but that has nothing to do with our case. We simply ask to set aside this Declaration; that is the basis of our claim, this Declaration. * * * If it should turn out that she was not naturalized in France, why that is another ground. That is another ground that she never lost her American citizenship'.
Plaintiff further claims that she relied on the statements of the French Consul contained in his letter of November 8, 1933 (Exs. 3-3A) that 'If you comply with the above as a consequence you will possess both French and American nationalities' and that she has always considered herself as having this dual nationality or possessing 'both French and American nationalities;' that 'no challenge was made of this by anyone until she applied for an American passport in Paris in December, 1944; that she was the more easily misled in her acceptance of this erroneous advice of the French Consul, because of the fact that her own mother possessed a duel citizenship, namely, both British and American, acquired by reason of her marriage to a Canadian National; that as Municipal law determines how citizenship may be acquired, the same person may possess a dual nationality Perkins v. Elg, 307 U.S. 325, 59 S. Ct. 884, 83 L. Ed. 1320, Attorney General of U.S. v. Ricketts, 9 Cir., 165 F.2d 193; that because of her belief that she possessed both French and American citizenship an explanation is furnished for acts of hers which otherwise might be misunderstood; for example, the use of a French passport while traveling in Europe and her American passport when traveling to America; that being an infant when she executed the Declaration of December 12, 1933, she could not effectively renounce her citizenship then and did not do so at any subsequent time, Attorney General of U.S. v. Ricketts, 9 Cir., 165 F.2d 193; U.S. ex rel. Baglivo v. Day, D.C., 28 F.2d 44; that under the provisions of the Cable Act of 1942, 42 Stat. 1022, plaintiff could not have expatriated herself by marriage alone, that formal renunciation was essential and this she never did and that defendant failed to show that plaintiff has acquired French nationality under the French Nationality Law'. This latter claim will be discussed later, under a separate heading.
Mr. Cunneen (Tr. Pp 30, et seq.) Assistant U.S. Attorney, (of counsel for Defendant) stated 'This is not a case of Naturalization in which a woman is seeking to acquire American citizenship. * * * This is the story of a woman (American citizen) who voluntarily acquired French citizenship, removed to France and made her home there. Her home is in France. * * Plaintiff, at the age of 19, married a French citizen. She was familiar with the French language. After her engagement, in 1933, she wrote a letter to the French Consulate in which she said 'I understand also that by the new laws, I do not lose my American citizenship, but in any case, I plan to become French.' She was married in New York in December, 1933 and immediately thereafter, removed to France where her home has been ever since and now is. She used French passports in her travels. * * In 1944, the U.S. State Department discovered that plaintiff had voluntarily acquired French citizenship. That was brought to the attention of the American Embassy in Paris and they then advised plaintiff that she had lost her American citizenship. Plaintiff protested and filed an affidavit with the American Embassy at Paris, setting forth her ideas. * * * Plaintiff's counsel has suggested that this is a case of mutual mistake of fact. Usually in cases of mutual mistake of fact, the two parties who are mistaken are the parties to the suit. In this action apparently, the French Consulate, according to plaintiff's version, was mistaken and plaintiff herself was mistaken, but the French Consulate is not the party defendant in this case. It is the Secretary of State of the United States. * * * It was the following (by plaintiff) of 'poor advice' not given, however, by the defendant in this case. * * * It is the contention of the State Department that if you ask for French citizenship, you are renouncing your American citizenship'.
It is a further contention of defendant that the proof shows that plaintiff obtained French citizenship voluntarily; that she expressed her desire for French citizenship and planned to be French 'in any case' (Ex. 2); that 'plaintiff was not misled by anything that was stated in the French language because she herself was well versed in French, having studied it in schools both in this country and at the Sorbonne; that plaintiff did acquire French nationality under the French Nationality Law'. This, too, will be discussed later in connection with plaintiff's claim in this respect.