Any person having any claim against property or funds in the hands of the Custodian must pursue his rights under § 9 of the Act, which is the only section providing for recovery of property or payment of debts. Central Union Trust Co. v. Garvan, supra; Commercial Trust Co v. Miller, 262 U.S. 51; Ahrenfeldt v. Miller, 262 U.S. 60; United States Trust Co. v. Miller, 262 U.S. 58. Unless it can be fairly said that Congress intended the United States to be a claimant under the Trading with the Enemy Act, it follows that it can assert no claim to these funds. While it may be conceded that the United States is a "body politic" in a limited sense, only by the most artificial process of reasoning can the conclusion be reached that Congress intended the United States to be a "person" within the meaning of § 9 of the Act.
Cases arising out of seizure during World War I uniformly held that the seizure and an action under Section 17 to enforce the seizure were peremptory and that any mistake in the seizure was to be rectified in a Section 9 proceeding. Central Union Trust Co. v. Garvan, 1921, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403; Stoehr v. Wallace, 1921, 255 U.S. 239, 41 S.Ct. 293, 65 L.Ed. 604. Under this strict interpretation of Section 17 intervention and interpleader were not allowed. United States Trust Co. of New York v. Miller, 1923, 262 U.S. 58, 43 S.Ct. 489, 67 L.Ed. 862; American Exchange Nat. Bank v. Garvan, 2 Cir., 1921, 273 F. 43, affirmed 260 U.S. 706, 43 S.Ct. 165, 67 L.Ed. 474. However, the scope of a Section 17 action has been expanded since the Second World War and the courts have been willing to test the theory of the seizure, rather than to leave the determination exclusively to the Alien Property Custodian. Thus in Clark v. Edmunds, D.C.W.D.Va. 1947, 73 F. Supp. 390, the court postponed the vesting until the end of the war and in the later action Brownell v. Edmunds, D.C.W.D.Va. 1953, 110 F. Supp. 828, affirmed 209 F.2d 349, the court interpreted the will adversely to the Custodian's determination and refused to enforce the vesting order.
The right to immediate possession is not to be defeated or delayed by defenses since the suit is tantamount to physical seizure. Commercial Trust Co. v. Miller, 262 U.S. 51, 55, 56, 43 S.Ct. 486, 67 L.Ed. 858; Central Union Trust Co. v. Garvan, 254 U.S. 554, 41 S.Ct. 214, 65 L.Ed. 403; U.S. Trust Co. v. Miller, 262 U.S. 58, 43 S.Ct. 489, 67 L.Ed. 862. In view of the strong caveat pronounced by the Supreme Court of the United States and the unequivocal mandate of the statute invoked, little, if any, discretion exists on the part of this court to interject equitable principles.
The validity of the vesting order is challenged by the residuary legatees. This court is without jurisdiction to inquire into the determination by the Alien Property Custodian that any remainderman was a national of a designated enemy country ( Stoehr v. Wallace, 255 U.S. 239; Commercial Trust Co. v. Miller, 262 U.S. 51; United States Trust Co. v. Miller, 262 U.S. 58; Ahrenfeldt v. Miller, 262 U.S. 60; Becker Co. v. Cummings, 296 U.S. 74; Miller v. Lautenburg, 239 N.Y. 132; Matter of Viscomi, 270 App. Div. 732; Matter of Carrington, 195 Misc. 442; Matter of Littman, 176 Misc. 679). The vesting order may be attacked only in a Federal court in pursuance of the remedy provided by the Trading With the Enemy Act (U.S. Code, tit. 50, Appendix, § 5, subd. [b]; § 7, subd. [c]; § 9, subd. [a]; Silesian-American Corp. v. Clark, 332 U.S. 469; Cummings v. Hardee, 102 F.2d 622; Matter of Sielcken, 167 Misc. 327; Matter of Yokohama Specie Bank, 188 Misc. 137; Matter of Daly, 189 Misc. 680; Matter of Wirth, 132 N.Y.S.2d 98) .
The United States Attorney, as successor to the Alien Property Custodian, has moved to dismiss the petition. The determination of the Alien Property Custodian that the legatee was a national of a designated enemy country may not be reviewed in this court nor may inquiry here be made as to the validity of the vesting order ( Stoehr v. Wallace, 255 U.S. 239; Commercial Trust Co. v. Miller, 262 U.S. 51; United States Trust Co. v. Miller, 262 U.S. 58; Ahrenfeldt v. Miller, 262 U.S. 60; Becker Steel Co. v. Cummings, 296 U.S. 74; Miller v. Lautenburg, 239 N.Y. 132; Matter of Viscomi, 270 A.D. 732). The remedy of the legatee is provided in the Trading with the Enemy Act (§ 5, subd. [b]; § 7, subd. [c]; U.S. Code, tit. 50, Appendix.)
authorizes the custodian to take possession, there is no occasion for the granting of the order which the Superintendent of Banks seeks. The authority of the Alien Property Custodian to take possession of what he determines to be the property of enemy nationals, and the conclusiveness of his determinations except in the procedures specifically provided by the statute, have for some time been a matter of settled law (Act, § 5, subd. [b]; § 7, subd. [c]; U.S. Code, tit. 50, Appendix, § 5, subd. [b]; § 7, subd. [c]; Central Trust Co. v. Garvan, 254 U.S. 554; Stoehr v. Wallace, 255 U.S. 239; Commercial Trust Co. v. Miller, 262 U.S. 51; U.S. Trust Co. v. Miller, 262 U.S. 58; Ahrenfeldt v. Miller, 262 U.S. 60; Becker Co. v. Cummings, 296 U.S. 74; Miller v. Lautenburg, 239 N.Y. 132; Silesian-American Corporation v. Markham, 156 F.2d 793; Matter of Viscomi, 270 A.D. 732). As has been stated and restated in these and other decisions, a finding by the Alien Property Custodian that the property is that of an enemy national is conclusive for purposes of his taking possession, and the rights of those who claim an interest in the property are protected only — and, as a matter of constitutionality, fully — by the exclusive procedure which is provided therefor in the Trading with the Enemy Act.