Opinion
No. 44/309.
02-02-1918
KEPPELMAN et al. v. KEPPELMAN et al.
Carrick & Wortendyke and Charles L. Carrick, all of Jersey City, and Herbert J. Hannoch, of Newark, for A. Mitchell Palmer, alien property custodian, for the motion. Edward M. & Runyon Colie, of Newark (Edward M. Colie, of Newark), for complainants. Martin V. Bergen, of Camden, and Ruby R. Vale, of Philadelphia, Pa., for Schulz & Ruckgaber.
Bill between Albert J. Keppelman and others, trustees under the last will and testament of Adolphus Keppelman, and Erich P. Keppelman and others. On motion on behalf of the alien property custodian of the United States to strike out a portion of the bill. Motion carried over until final hearing.
Carrick & Wortendyke and Charles L. Carrick, all of Jersey City, and Herbert J. Hannoch, of Newark, for A. Mitchell Palmer, alien property custodian, for the motion. Edward M. & Runyon Colie, of Newark (Edward M. Colie, of Newark), for complainants. Martin V. Bergen, of Camden, and Ruby R. Vale, of Philadelphia, Pa., for Schulz & Ruckgaber.
LANE, V. C. This is a motion made on behalf of the alien property custodian to strike out a portion of the bill of complaint.
The bill was filed by trustees acting under the last will and testament of Adolphus Keppelman. By the will three citizens and residents of the German Empire, among others, were made beneficiaries. The bill is filed for the purpose of obtaining a construction of the will so that it may be ascertained how much should ultimately be paid by the trustees to the respective beneficiaries. Before the funds can be distributed there must be a final hearing. Prior to the declaration of war, the beneficiaries, alien enemies, executed powers of attorney to the defendants Schulz & Ruckgaber, bankers and citizens of this country. The powers authorize Schulz & Ruckgaber to collect such sums of money as might become due to the alien enemies under the will, to execute releases and re funding bonds, to collect income upon securities and generally to act for the beneficiaries in the matter of the estate. The bill in its fourteenth paragraph charges that Scnulz & Ruckgaber have given notice to the complainants that they claim the right to receive, by virtue of the powers of attorney, the shares of the alien enemies, and that A. Mitchell Palmer, custodian of alien property, also claims the right to receive the shares, that the trustees are doubtful as to whom to pay, and for their protection they pray the direction of the court.
It is conceded by counsel for the alien property custodian that for his protection it is necessary that there should be a final decree determining the amount which should ultimately be paid. The motion amounts in its last analysis to an attempt to exclude from the cause on the motion of one defendant other defendants. The matter was argued with great thoroughness as if this court should, at this time, upon this motion, construe the act of Congress, "An act to define, regulate, and punish trading with the enemy, and for other purposes," No. 91 of the 65th Congress (Act Oct. 6, 1917, c. 106, 40 Stat. 411), and determine whether or not under it the trustees should pay direct to the alien property custodian, or should pay to the holders of the powers of attorney.
Laying aside all question of technique, inasmuch as the money cannot be distributed until after final decree and as the rights of the alien property custodian and of the United States cannot be detrimentally affected until final decree and as unquestionably the trustees are entitled to protection to the fullest extent that this court can give them, it seems to me that to determine this important question at this time, upon this motion, would not only be premature, but most unwise from the standpoint of policy. I think the case is one in which the rule permitting the court to carry over a motion of this kind until final hearing ought to be applied, and such is the order that I will advise.
I cannot, however, resist expressing my firm conviction that the act of Congress must be construed in the light of two purposes: (1) To absolutely prevent any act which would result in a detriment to the United States in the progress of the war; and (2) not to permit or compel any act which would result in an injury to an individual alien enemy, which act would in no wise benefit the United States in the progress of the war.