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July 9, 1971

Benno Rabinof and Sylvia Rabinof, Plaintiffs
United States of America, Defendant

Levet, District Judge.

The opinion of the court was delivered by: LEVET

Opinion, Findings of Fact, and Conclusions of Law

Levet, District Judge

 This is the story of "The Lord Amherst," a Stradivarius violin once owned and played by Fritz Kreisler. *fn1" Dr. Bernard Mortimer, a physician, a music lover, although not a musician, bought the violin in 1958, paying $20,000 for it, loaned it to Benno Rabinof, a concert violinist, to play. Later, Mortimer became involved with the Internal Revenue Service of the United States of America in respect to income taxes and the government levied a tax lien against The Lord Amherst.

 Subsequently, on January 2, 1968, Rabinof and his wife Sylvia, a concert pianist, instituted this action to secure a determination that the famous musical instrument and bows no longer belonged to Mortimer but to violinist Rabinof, to enjoin the enforcement and to discharge said levy.

 Plaintiffs' claims: First, that subsequent to the purchase of the violin, Mortimer gave the $20,000 instrument to Rabinof in 1958 *fn2" (214-215); *fn3" Second, alternatively, if not donated, that Rabinof acquired ownership of the violin by adverse possession.

 More particularly, as set forth in the pretrial order, plaintiffs' claim was as follows:

"Plaintiffs contend that in November of 1958 an oral gift of the violin accompanied by delivery thereof to plaintiff, Benno Rabinof, in the City of New York was made and that title to the violin had since that date been in the plaintiff, Benno Rabinof. Plaintiffs further contend that by formal document received by them by mail in New York City on or about September of 1959, by written instrument Dr. Bernard Mortimer and Dr. Edna Mortimer against made unconditional and unqualified gift of the said violin to the plaintiffs and that plaintiffs have had full and complete ownership of said violin and continue to have such unconditional and unqualified and full and complete ownership of the said violin down to the present time."

 No jury was demanded and the case was tried before the court.

 After hearing the testimony of the parties and examining the pleadings, the exhibits and the proposed Findings of Fact and Conclusions of Law submitted by counsel, I make the following Findings of Fact and Conclusions of Law:

 Findings of Fact

 1. Benno Rabinof is and has been a concert violinist for many years (12, 13, 14, 15). In 1938 he married the co-plaintiff, Sylvia Rabinof, a concert pianist (15, 16). In 1954, when the musical duo gave a concert in Joliet, Illinois for the Civic Music Association they met Dr. Mortimer and his wife, Edna, also a physician (16, 17), at a dinner party at the Mortimers' residence (19, 20).

 2. Dr. Bernard Mortimer was licensed in 1934. From 1943 until 1965 he resided in Joliet, Illinois, where he practiced medicine, obstetrics and gynecology. He and Mrs. Mortimer now live in Pennsylvania (253, 255, 256).

 Mortimer had developed an interest in violins while working in his college days as an usher for the Chicago Civic Opera. There he heard many violin concerts with the great violinists of that age, Fritz Kreisler, Jascha Heifetz, Eugene Ysaye, and many others. He continued this avocational interest, starting a small library with books on the violin and later accumulating a large volume on the Stradivarius violins (254). He was especially interested in Fritz Kreisler and his concerts, having had personal contact with him (255). He was a subscriber and later became president of the Joliet Civic Music Association in connection with the activities of which he met plaintiffs (256-257).

 3. Between 1954 and the end of 1958, the plaintiff-musicians were living at 344 West 72 Street, New York City. They toured constantly and visited the Mortimers or talked to the Mortimers by telephone (33-36). The Mortimers occasionally communicated with the Rabinofs when they came to New York City and at times all four ate together at restaurants (105-106). Rabinof has always lived in New York City except for tours and vacations (61-62).

 4. In the fall of 1958, the Rabinofs and the Mortimers dined together in a New York City restaurant known as the "Forum of the Twelve Caesars," sometimes called the "Roman Forum" (317), while the Mortimers were staying at the St. Regis Hotel (37-39). At this time Mortimer asked Rabinof if he had ever played a violin which he liked, whereupon Rabinof said that there was one, the Stradivarius which he had heard Kreisler play at a concert in New Brunswick (43). Rabinof later recounted its history to Mortimer in a telephone conversation (262-263). Because this violin had been played at one time by Fritz Kreisler it was also known as the Lord-Amherst-Kreisler Stradivarius (43, 262-263, 414; Exs. 9, 10, 11a-c, 41, 51, 52). Mortimer said, "Why don't you play that violin." (44-47) Then, outside the Roman Forum, Mortimer said, "Buy that violin." (45, see also 149-153)

 5. After these conversations at the Roman Forum, Mortimer telephoned Rabinof several times in the fall of 1958, asking him if he knew where the violin was; when Rabinof said, "No," Mortimer said, "Why don't you find out." Later, Rabinof and Mortimer again talked about the violin and Mortimer said he would go to see it (265). After lunch Mortimer went to the studio of one Francais to see the instrument, and one of the visitors there played it for him (266, 319, 320). In October 1958, Mortimer telephoned Francais and as a result Francais telephoned the owner of the violin, a Mrs. Gordon. Mortimer purchased the violin at the end of October 1958 for $20,000.

 6. Payment of the $20,000 purchase price by Mortimer was made by a series of five bank money orders, dated October 30, 31, November 7, 13 and 19, 1958, which were sent to Jacques Francais by mail (271-277; Exs. 4, 5, 7, 8; Pretrial Order Para. 3(a)(i) and (iv)). It is significant that on or about September 3, 1959, plaintiff Rabinof apparently told Allyn Baum, a New York Times photographer, that the violin was valued at more than $75,000 and is called "one of the three greatest Strads" in the world (Ex. 51) and that on November 9, 1967 Francais wrote Mortimer that "It has a fair insurance value on today's market of $40,000." (Exs. 41, 41a) It is most unlikely that Mortimer would have donated a violin of the value of from $20,000 to $75,000 to Rabinof. It is also noteworthy that on June 4, 1971 the New York Times reported as follows:

"LONDON, June 3 -- A world's record auction price for a violin was established today when the firm of W. E. Hill & Sons paid less than 84,000, or a little more than $200,000, for a Stradivarius. The previous record, also at a Sotheby's auction, had been set in 1968 for the Marie Hall Stradivarius, which fetched $53,000."

 7. On November 25, 1958, Jacques Francais mailed to Mortimer a bill of sale for the Lord Amherst violin (277-278; Ex. 9) and sent him the certificate of authenticity for the violin which had originally been issued in 1936 to W. E. Hill & Sons of London to Fritz Kreisler (283-286; Ex. 10). On November 3, 1958, Mortimer wrote Francais in part: "We are very happy with our acquisition and feel that Benno will surpass himself with this fiddle." (Emphasis supplied) (Ex. 5)

 8. Jacques Francais has been a violin maker and dealer for twenty years in New York City, selling about one hundred violins a year (381-382). Francais had known Rabinof for about twenty years as a business acquaintance and as a friend (384-385). He also knew Mortimer as a business acquaintance (405), having met him for the first time in 1957, when Mortimer came to buy a violin (385-387). He sold Mortimer a Sancta Seraphim violin for $4,500. Later, Mortimer asked Francais to resell it (387-388; see also Stip. pp. 4, 5). The Lord Amherst Stradivarius violin, subject of this suit, had been consigned to Francais by Mrs. Ruth Gordon, the owner, widow of violinist Jacques Gordon. Rabinof had expressed an interest in playing the Lord Amherst violin, and while it was on consignment to Francais he had loaned it to Rabinof to play after Rabinof had expressed a desire to borrow the violin in connection with a television show (391-392). In 1958, Rabinof came to Francais and told him that he was under the impression that Mortimer would buy the Stradivarius and, in turn, that Mortimer would loan it to him, Rabinof (389).

 9. Subsequent to the purchase of the Lord Amherst, Mortimer gave instructions to Francais to permit Benno Rabinof to pick up his Stradivarius violin because he "was allowing him to play it." (279) Through Francais and with the same broker who had insured his previous violin, Mortimer made arrangement for insurance of the Stradivarius in his name only (279-281, 397, 398; see Exs. 11a, b and c). Binders were received in early October 1958 (see Ex. 12; 281). Mortimer continued to reinsure the violin in his name (see Exs. 15a-c, 47a, b, 49a, b; 282). Mortimer also received from Francais at the time of the purchase a certificate of title of ownership of the violin and the certificate of authenticity issued by Hill of London (violin dealers) (see Ex. 10; 283-286). With the exception of the period October 21, 1965 to October 31, 1967, when Mrs. Mortimer was named, Mortimer was named as the only assured party in these policies (282-283; Exs. 15a-c, 17a-c, 47a-b, 49a-b). The violin and the bows, after delivery to Rabinof, have remained in the constant possession of Rabinof (Stip. 6, p. 5). 10. In various insurance policies issued to Mortimer as owner endorsements in substance indicated that this violin was "in the care, custody and control of the assured, that is Mortimer, and/or Benno Rabinof." This included the following: Period of Policy Exhibit October 31, 1958 to October 31, 1961 11c October 31, 1961 to October 31, 1964 15a October 31, 1964 to October 31, 1967 17a The insurance was split into various policies of different companies. Other policies which contain similar endorsements are as follows: Period of Policy Exhibit August 1, 1959 to October 31, 1961 11a August 1, 1959 to October 31, 1961 11b October 31, 1961 to October 31, 1964 15b October 15, 1965 to October 31, 1967 17b

 The total premium on the $28,000 coverage of the Lord Amherst violin appears to have been approximately $400 annually (see Ex. 11a). Later, after the addition of the bows, this insurance was increased to $29,725, making a total premium of $467.44 (see Ex. 17a). Plaintiffs' contention that Mortimer would have continued to insure the violin and the bows and paid premiums ranging from approximately $400 to $467.44 per annum, after a donation to Rabinof, is a patent absurdity.

 11. Rabinof picked up the violin from the showroom of Francais on or about October 5, or 6, 1958, after a call from Francais (58-61). Rabinof took out no insurance on the violin, although it was an important asset to his musical career (155). At the time of purchase and since that time the violin has been in his possession and has never left his possession except for the purpose of repairs (61). Aside from use on tours, the violin has been physically located in New York City. Rabinof conceded that at the time of the purchase of the violin through Francais it was valued at $20,000, the amount Mortimer paid for it. Rabinof made no attempts to have the violin evaluated for insurance purposes and was not concerned with insurance (156). He never insured the violin until 1964, after Mortimer was convicted in a tax case (157-158). Although Rabinof brought the Lord Amherst into Francais' showroom several times after 1958 for the purpose of cleaning it and maintaining its condition, he never asserted to Francais that he was the owner of the Lord Amherst (403).

 12. Rabinof testified that in a telephone call by Mortimer shortly before the purchase of the violin in 1958, this conversation took place: "I said, 'Mort, I don't want that violin because I can't afford to buy it.' And then he [Mortimer] said, 'I want to buy it for you.'" (46) However, under all the circumstances surrounding the purchase of the violin and the facts following such purchase, it is impossible for this court to conclude that Mortimer, even if such a statement were made, intended to give the violin to Rabinof.

 13. After Rabinof picked up the violin in 1958, a telephone conversation took place (287-288) in which Mortimer asked Rabinof to stop at his home in Joliet on his tour so that the Mortimers could see the Stradivarius violin. Rabinof agreed and later visited the Mortimers' home in November, 1958, bringing with him the Stradivarius (288-289). Mortimer took some pictures. Rabinof commented that he was happy to be able to play the Stradivarius and that he felt it would enhance his career (289-290), to which Mortimer replied that he was pleased to be able to provide Rabinof with the means to do this by letting him play "my Stradivarius." (290) During the course of this visit it was agreed between Mortimer and Rabinof that violin bows of a high quality should be purchased for use with the Lord Amherst and that Rabinof would look for such bows while on tour in Europe (310). Mortimer filed no gift tax returns with the United States Government for the year 1958 (290). While plaintiffs admitted that they were grateful to Mortimer for his generosity in letting Benno Rabinof play the violin, they admitted that they never wrote him a letter thanking him for his $20,000 "gift" (154-155).

 14. In the latter part of November 1958, when Mortimer proposed to buy a bow, Rabinof said he would look around for suitable bows on his next tour to Europe (309-310). On February 8, 1959, Benno Rabinof cabled Mortimer from Europe that he had located two beautiful bows for $1,500 (311; Ex. 20). Mortimer cabled back the requested $1,500 and Rabinof purchased the two bows, one a Peccatte and the other a Tourte (251, 311-313; Exs. 21 and 22). *fn4" The bows have remained in the constant physical possession of Benno Rabinof ever since (Pretrial Order Para. 3(a)(vi)). The Peccatte and Tourte bows were insured by Mortimer as the owner of same from at least June 29, 1959 until March 1970. With the exception of the period October 21, 1965 to October 31, 1967, when Mrs. Mortimer was named as the assured, the coverage of these insurance policies with respect to the two bows extended only to Mortimer (Exs. 11a-c, 15a-c, 17a-c, 47a-b, 49a-b).

 15. On September 3, 1959, one Gay Talese, a reporter for The New York Times, interviewed Rabinof at Rabinof's residence (356-359). He did not recall whether Rabinof made a telephone call during the interview or whether he asked Rabinof to make any telephone call (361). He was not advised by his superior of any gift of a Stradivarius to Rabinof (363). Later that day, Allyn Baum, now a senior assistant editor with the economics division of Litton Industries, and in 1959 a photographer for The New York Times, arrived at Rabinof's apartment. He took photographs of Rabinof, the violin and the bows (372, 373-375). He confirms the fact that Rabinof made no telephone call (380). Exhibit 10, an article written by Gay Talese and published in The New York Times on September 4, 1959, was admitted by the court (209), whereupon the government attorney moved to strike it and the court reserved decision. I deny the motion. The exhibit does not sustain plaintiffs' claim to the violin but, rather, indicates the absurdity of plaintiffs' claim. Rabinof's apparent explanation to Talese, set forth in the note below, is an evident fantasy which is not supported by any evidence in this case. *fn5" In any event, no credible evidence supports Rabinof's claim that on September 2 or 3, 1959, or on any other date, Mortimer gave Rabinof any authority to state to Talese that Mortimer had given Rabinof the Stradivarius violin.

 16. Rabinof and Mrs. Rabinof each place the visit of The New York Times representatives on September 2, 1959 (130-131, 160-166) and point to a record of a telephone call to Joliet on September 2, 1959 (Ex. 7). However, in view of the testimony of Talese, Baum and Mortimer, I am not convinced that Mortimer was notified by Rabinof of any prospective publication to the effect that a gift had either then or thereafter been made or that he agreed to such a statement. At most, it was "good publicity" for Benno Rabinof.

 17. On September 4, 1959, a feature story appeared in The New York Times under Mr. Talese's by-line concerning the Lord Amherst violin. A photograph of Mr. and Mrs. Rabinof together with the violin accompanied the article (131, 358, 377-378; Exs. 10, 51). The article, which was almost entirely based on information supplied by Benno Rabinof, stated that the violin had recently been handed over to him by an anonymous friend who arrived for lunch at a New York restaurant with the violin under his arm. The friend was described as saying that he wished to hear the violin "sing again." (368-369) The fantastic account of the gift of a Stradivarius in that fashion beggars belief. Mortimer, who was in Joliet, Illinois at the time, did not read, nor did he have the opportunity to read, the article concerning the Lord Amherst violin as it appeared in The New York Times (Ex. 10). He read a copy of the article for the first time in April of 1971 (291-292).

 18. Some time prior to 1964, Mortimer received one of several publicity brochures which was sent out by the Rabinofs' booking agents and which stated that Benno Rabinof was playing the Lord Amherst Stradivarius violin. Shortly thereafter, Mortimer sent off a brief note to Rabinof to the effect that he felt that the brochure was "good publicity for the Strad." (199-202, 292-294; Ex. 8).

 19. Plaintiffs' Exhibit 12, purporting to be a letter, was admitted by the court for limited purposes (430). It reads as follows:

"Dear Benno & Sylvia
"It is our pleasure to present to you the Lord Amherst Fritz Kreisler Stradivarius with deepest humility -- to hear this instrument sing.
"All our Love
"Edna & Mort
"Signed: Bernard Mortimer
Edna Z. Mortimer"

 The letter, even if considered in full, has no probative force. It is not dated; there is no proof that it was delivered in 1958, the year in which plaintiffs claim a gift to have been made, or any other time. It cannot confirm an alleged 1958 gift since no proof of such a gift exists. There was no proof of an original or sufficient foundation for admission of an alleged copy. It is not at all conclusive in light of all the other circumstances in the period from 1958 to 1963 and even thereafter. "To hear this instrument sing" is entirely consistent with the purpose of the loan by Mortimer.

 20. In the winter of 1963, between Christmas and New Years, while Mortimer was a patient in the New York Hospital, he called Rabinof and asked him to come and bring the violin so that he could hear it; Rabinof came on January 2, 1964 and played the violin at the hospital for Mortimer (297-298). At that time Rabinof told Mortimer how pleased he was to be playing the violin (299).

 21. On or about March 31, 1964 (299, 438), Mortimer was convicted in the United States District Court for the Northern District of Illinois for income tax evasion with respect to the taxable years 1957 through 1960 (Stip. 7; 5, 6). He was then placed in custody and spent eight months and eighteen days, from October 25, 1965 until July 12, 1966, at a federal penitentiary in Sandstone, Minnesota (308-309). During the course of the trial, in response to questioning by the court, Mortimer testified that he and his wife owned the Lord Amherst Stradivarius violin (436). The trial generated a great deal of publicity with respect to the violin (296-297).

 22. At the tax trial in Chicago in 1964, Mortimer testified as follows:

"'Q. Did you give the violin to Benno Rabinof ...

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