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UNITED STATES v. DONA MANUELA FAGALDE HERCE

November 5, 1971

UNITED STATES of America, Plaintiff,
v.
Dona Manuela Fagalde HERCE et al., Defendants


Brieant, District Judge.


The opinion of the court was delivered by: BRIEANT

DECISION AND OPINION

BRIEANT, District Judge.

 This is an interpleader action by the United States of America, seeking judicial determination of title to an article of personal property located within the Southern District of New York.

 The property is concededly privately owned but a bona fide dispute exists with respect to title.

 By an Order made August 2, 1971 (Tenney, J.), this Court directed that notice be published in a local newspaper once a week for a period of six consecutive weeks, and that on or before October 1, 1971, "all persons having a claim of title * * * shall file their claims thereto by filing with this Court and by serving upon the parties to this action, an answer to the complaint herein which shall set forth the basis of the claim of title."

 No parties, other than those above named, have filed any such pleadings, and the time within which this may be done has expired.

 The article of personal property involved in this litigation is said to be an original painting by El Greco (Domenicos Theotocopoulos), who died in 1614. It is executed on a canvas measuring 22 1/2 inches in width by 43 1/4 inches in height. This work of art was delivered to the Executive Branch of the United States Government (Federal Bureau of Investigation) in 1971, voluntarily, or under circumstances not requiring the use of legal process, so that an investigation could be conducted with respect to a possible crime. The investigation resulted in no indictment, however, it did come to the attention of the Executive Branch that there were two separate sets of claimants, private individuals who asserted legal title to the painting. One set of claimants are the heirs of persons who are said to have owned the painting in Spain in 1936 at the start of the Civil War.

 The other set of claimants consist of an American citizen who delivered the painting to the Federal Bureau of Investigation, and the person for whom he asserts he acted as agent.

 The painting has not been publicly displayed since 1936, and its whereabouts have been unknown to those engaged in the field of fine arts.

 The painting was delivered to the Federal Bureau of Investigation in an unframed condition, tacked on a piece of plywood, wrapped in a blanket and burlap. It was produced from the trunk of an automobile and handed to a Special Agent.

 It is apparent to the Court and was not contested on oral argument, that litigation of the conflicting claims of title under the circumstances of this case is likely to occupy some time. This lawsuit could conceivably last two or more years. Cases trying title to works of art are not unknown in the Courts and most have taken a number of years. See, e.g. Menzel v. List, 24 N.Y. 2d 91, 298 N.Y.S. 2d 979, 246 N.E. 2d 742, (a dispute over a stolen Chagall, requiring six years). The painting is likely to remain under judicial control for an extended period of time. It would be improper and unwise to deliver this unique work of art to either set of claimants until the matter has been fully litigated.

 When the Federal Bureau of Investigation had completed its work in connection with the painting and no longer required it for investigative purposes, the future disposition thereof became the responsibility of Hon. Whitney North Seymour, Jr., United States Attorney for this District, representing the United States of America (Executive Branch -- Department of Justice). The United States Attorney properly concluded that an interpleader action should be brought and that notice should be served on possible unknown claimants. As indicated, this has been done.

 Plaintiff may maintain this interpleader action, and need not deposit the painting with the Court. Nor need the United States post any bond or make any deposit in Court in lieu of the chattel as is required of an ordinary plaintiff in an interpleader action who does not deposit the fund or res in Court. Title 28 U.S.C. 2408. United States v. Coumantaros, 146 F. Supp. 51 (S.D.N.Y. 1956, Sugarman, J.).

 Mr. Seymour is also properly concerned about the physical condition of the painting and the provisions to be made for custody thereof ...


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