Opinion
December 12, 1949.
Present — Dore, J.P., Cohn, Callahan, Van Voorhis and Shientag, JJ.;
Judgment affirmed. The vesting order indicates no intention to appropriate fiduciary powers, but the 9th finding of fact is modified, without prejudice, so as to eliminate therefrom the irrelevant finding that Bruno Carl Reinicke and Robert Hans Reinicke are citizens of the United States of America.
Shientag, J., concurs in the modification of the 9th finding but otherwise dissents and votes to reverse and to grant judgment in favor of the intervening defendant, the Attorney General of the United States, for the relief demanded in the substituted answer, on the following grounds: (1) The 1937 direction, requiring payment of the trust income to Bruno Reinicke, is a continuing direction; it is still in force, and the intervening defendant, as his successor, is entitled to receive the income accumulated since 1941, and income which may accrue hereafter. The continuing direction survived the Presidential "freezing" order of June 14, 1941, and the declaration of war. (2) In any event, the vesting order affected every interest in the trust, including that of the settlor, beneficiaries and remaindermen. The only interest that was not affected was that of the trustee named to administer the trust. That being so, the intervening defendant succeeded to all rights, interests and powers established, created or provided for under the trust indenture except that of the trustee administering the trust; and, in addition to the income, the intervening defendant has succeeded to all of the powers which Bruno Reinicke could have exercised under the trust indenture, whether or not those powers be considered to be personal in character. The intervening defendant is substituted by virtue of the vesting order in the place and stead of the settlor of the trust and of the beneficiaries named thereunder so far as rights and powers under the trust are concerned.