In re the Judicial Settlement of the Account of Kelly

101 Misc. 495

• Court: New York Surrogate's Court
• Decided: November 15, 1917
• Status: Published

Opinion

Ketcham, S.

The fund remaining in the hands of the public administrator for distribution belongs to subjects of the empire of Germany.

It is the obvious duty of the accountant not to pay this fund to the persons who in times of peace would be entitled to the same. The right of the United States during the existence of the present war to appropriate any property of an alien enemy is a continuing right, and it imposes upon persons having control or possession of such property the duty of withholding the same from the enemy in order that the property at all times may be immediately available to the government if it shall assert a right to its possession.

It is necessary that between enemies in arms laws so far only as they affect private rights shall hold their peace, but these rights are not to be extinguished. Subject to the just demands of the government, they remain in force but suspended.

Hence it is the duty of this court to make its decree in recognition of the obligation of an accounting party to legatees or distributees, though aliens, but it has the higher duty to see that the republic takes no harm from such decree. This was the law before the enactment of the Trading with the Enemy Act,

* the provisions of which only confirm the law of nations in that regard and define the methods by which it may be made operative.

In this case, as in others of like character, this court will decree that payments due to the subjects of Germany, or of any of its allies, shall be made either at the end of the war to the alien himself or, in the meantime, to the duly constituted authority of the United States entitled to receive the same.

Decreed accordingly.

See Act of Congress, October 6, 1917.— [Repr.