The opinion of the court was delivered by: KAUFMAN
(1) to dismiss the action as against the United States of America;
(2) to dismiss the action as against all the defendants upon the ground that the complaint fails to state a claim upon which relief can be granted;
(3) for summary judgment in favor of the defendants upon the ground that the distributees of the estate of Dragoi Batzouroff are ineligible to maintain this action or to claim a return of property; and
(4) for summary judgment in favor of the defendants upon the ground that the action was not commenced within the period prescribed by Section 33, as amended, of the Trading With the Enemy Act, 50 U.S.C.A.Appendix, § 33.
Plaintiff consents to the dismissal of the action as against the United States of America and on such consent defendants' motion for such dismissal is granted.
As to (2) and (3) above, plaintiff contends that as Administrator, C.T.A. he is the legal owner of the fund in question and as such is entitled to 'institute a suit in equity' to establish his title to such fund and need not allege that the beneficiaries are not enemies or allies of an enemy. Section 9(a) of Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 9(a). As to (4) it is the contention of plaintiff of the Trading with the Enemy Act inasmuch as a claim for the return of the fund involved herein has been pending in the Office of Alien Property and its predecessor since February 23, 1944.
On May 29, 1943, the Alien Property Custodian, pursuant to the provisions of the Trading with the Enemy Act, as amended,
issued Vesting Order No. 1583 by which he vested all the property in the United States belonging to Batzouroff & Cie, a Bulgarian partnership, determining that that business entity was an enemy national. At the time the vesting order was issued, the Corn Exchange Bank of New York City, New York, had on deposit property and cash of Batzouroff & Cie valued at $ 497,438.54. The bank paid over the vested property to the Alien Property Custodian, pursuant to the vesting order.
Dragoi Batzouroff, a Bulgarian national and an alleged member of the Bulgarian partnership, was present in the United States at the time the vesting order was issued. Through his attorneys he filed Claim No. 1737 with the Office of Alien Property on February 24, 1944, in which he alleged, inter alia, that he and his brother, Christo Batzouroff, then a Bulgarian national residing in Bulgaria, were the sole owners of Batzouroff & Cie, each possessing a one-half interest in the partnership; and that as a partner physically present in the United States, he was entitled to a return of all the vested property belonging to the firm. After a hearing on his claim held on May 23, 1944, the Vested Property Claims Committee of the Office of Alien Property Custodian tentatively disallowed this claim on September 15, 1944. In connection with a further hearing, Batzouroff's counsel obtained an adjournment in order to obtain and present new evidence to the Vested Property Claims Committee.
Dragoi Batzouroff died testate in New York County, New York, on June 18, 1945; his will was duly admitted to probate in the Surrogate's Court of New York Country and Edward V. Killeen qualified as his executor on August 10, 1945. Approximately two years later, on July 1, 1947, Edward V. Killeen filed an amended Claim No. 1737 limiting his application for relief only to the return of such property as would be necessary to pay the debts of the decedent, Dragoi Batzouroff, in the amounts found by the Surrogate's Court of New York County. Edward V. Killeen at that time asserted no claim for Germaine Buchman who was granted a $ 25,000 legacy under the decedent's will nor did he assert any claim on behalf of the decedent's brother and three sisters, Bulgarian residents and citizens, all of whom were residuary legatees under the will of the decedent.
The Bulgarian residuary legatees and their successors in interest all filed claims for a return of the vested property with the Office of Alien Property. These claims were prosecuted on their behalf by the Legation of the Peoples Republic of Bulgaria, and were filed on August 9, 1948. The Claims Branch of the Office of Alien Property moved that these claims be dismissed because all these claimants were ineligible for a return under Section 32 of the Act. On December 2, 1948, before any action had been taken on the motion, the claims were withdrawn.
On April 25, 1949, Edward V. Killeen filed an additional Claim No. 42689 on behalf of Germaine Buchman, a Belgian national residing in France. In his claim form the executor stated that all the debts of the estate had been paid or payment therefor provided and that Germaine Buchman was the only non-enemy legatee involved in the estate.
On May 23, 1949, the Deputy Director of the Office of Alien Property filed a written determination authorizing payment of the sum of $ 82,689.27 to Edward V. Killeen pursuant to amended Claim No. 1737; and on August 7, 1950, the Director filed a written determination authorizing the payment of the sum of $ 25,000 to Edward V. Killeen pursuant to Claim No. 42689 filed on behalf of Germaine Buchman. As of April 30, 1949, Edward V. Killeen had filed no other claim on behalf of any person other than those described in the preceding paragraphs. No claim has been filed since on behalf of the estate or of any of the other legatees or persons interested.
On August 13, 1951, Edward V. Killeen resigned as executor and the plaintiff, Frank M. Cordero, was appointed administrator c.t.a. on August 30, 1951. Approximately one and one-third years thereafter, on December 24, 1952, the plaintiff instituted this suit seeking a return of all the property vested by Vesting Order No. 1583, naming the United States of America, the Attorney General of the United States ...