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PUBLIC ADMR. OF NEW YORK CTY. v. MCGRATH

May 21, 1952

PUBLIC ADMINISTRATOR OF NEW YORK COUNTY
v.
McGRATH



The opinion of the court was delivered by: KAUFMAN

Defendant moves to dismiss the complaint on the ground that this court lacks jurisdiction over the subject matter in that, as it appears from the face of the complaint, the sole distributees of the estate which plaintiff seeks to administer are enemies or allies of enemies, as those terms are defined by the Trading with the Enemy Act, 50 U.S.C.A. Appendix, §§ 1,2, and Congress has not consented that the United States be sued by enemies or allies of enemies.

Plaintiff instituted suit on January 23, 1952 under 50 U.S.C.A.Appendix, § 9(a), which provides the method by which a person not an enemy or ally of an enemy who claims to property transferred to the Alien Property Custodian may have that property returned.

 The following facts are alleged by plaintiff's attorney in the complaint. The property, which is the subject matter here, was vested by Vesting Orders 1941 and 1942, executed on August 6, 1943, and Vesting Order 2092, executed on September 4, 1943. It was vested as belonging to the heirs, legatees, devisees and distributees of Janis Freimanis, deceased. The Vesting Orders found and determined that Georg Freimanis and Alice Freimanis, Janis' widow, were nationals of Germany, a designated enemy country, and along with any other heirs and distributees of Janis Freimanis, seized their interest in the estate of Janis Freimanis to be held or otherwise dealt with in the interest of and for the benefit of the United States.

 Janis Freimanis died intestate on or about August 18, 1941 leaving him surviving his widow Alice and his one son Georg as his only heirs and distributees. Alice and Georg Freimanis were citizens of the Republic of Latvia since that state came into existence in 1918, and they were residing in Riga, Latvia, since 1925. In March, 1940 Mr. and Mrs. Freimanis left Latvia on a business trip to Rotterdam, Holland, and were there when the Germans invaded the Lowlands. On June 24, 1940 they were passing through Germany on their way home to Riga and visiting with their son Georg, who was then in Gdynia in German-occupied Poland. At that time they learned that the Russians had occupied Latvia, and thus they were compelled to stay in Gdynia. On August 18, 1941 Janis Freimanis died in a Gdynia hospital of a brain stroke.

 On March 18, 1941, while still in Gdynia, Alice Freimanis became a naturalized German citizen under what she states to be compulsory circumstances. She stayed in Germany until 1945 when, following the Allied occupation, she went into a Displaced Persons Camp in the American Zone of Germany. In 1948, she came to the United States on an immigration visa and has resided here ever since.

 In October, 1939 Georg Freimanis left Riga, Latvia, for Gdynia in German-occupied Poland when the Russian occupation of Latvia was "imminent." He states that Germany was the only country to which he could obtain admission. He arrived in Gdynia November 26, 1939, and, being unable to go thence to Sweden as he intended, he remained in Germany until the Allied occupation in 1945. He came to the United States in 1948 on an immigration visa. He too states that he was compelled to become a German citizen during the war.

 In 1950 duly constituted West German authorities declared that Alice and Georg Freimanis never had German citizenship.

 The complaint alleges that in view of this set of facts, Alice and Georg Freimanis were "no nationals of Germany or of any enemy country at the time of the vesting." Furthermore, it is alleged, they did not "volitionally acquire" residence in Germany, but were compelled to do so by circumstances. In addition, it is claimed that they were not residents of any enemy country within the meaning of the Trading with the Enemy Act.

 On March 27, 1942 plaintiff was appointed Administrator of the estate of Janis Freimanis and the New York County Surrogate issued Letters of Administration to him. Plaintiff has demanded the vested funds from defendant but to no avail. As a result, suit was commenced.

 To defeat defendant's motion, plaintiff takes two lines of argument. His initial contention is that his citizenship as fiduciary rather than the citizenship of the beneficiaries determines the capacity to sue. I reject the argument on the authority of Farmers Loan & Trust Co. v. Hicks, 2 Cir., 1925, 9 F.2d 848, certiorari denied 1925, 269 U.S. 583, 46 S. Ct. 120, 70 L. Ed. 424; Central Hanover Bank & Trust Co. v. Markham, D.C.S.D.N.Y. 1946, 68 F.Supp. 829.

 The second argument cannot be dispatched so readily. It is that Alice and Georg Freimanis are not within the class prescribed by the Trading with the Enemy Act.

 Section 2(a) of the Act defines an enemy as: "Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military and naval forces) of any nation with which the United States is at war * * *." (Emphasis supplied.)

 The contention is that for purposes of the Act these beneficiaries had residence nowhere since they decided not to return to Latvia before that country became enemy-occupied, and since they did not voluntarily reside in Germany or German-occupied Poland. The government's rebuttal is that for purposes of the Act, they either had to be residents of Latvia or of German-occupied territory, and in either case they would be barred by the Act from maintaining a suit.

 The issue thus narrows down to the meaning of the words "resident within" which appear in section 2 of the Act. A very recent ...


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