United California Bank v. Kennedy

The Attorney General of the United States, as successor to the Alien Property Custodian, appeals from an order divesting the United States of its interest in the estate of an enemy alien pursuant to Public Law 87-846 (50 U.S.C. App. §41).

The decedent, then a resident and national of Germany, died testate in 1942, bequeathing her residuary estate in specified proportions to certain near relatives. The property located in California consisted of a modest amount of cash and securities. In 1950 the United States Attorney General, acting pursuant to the Trading With the Enemy Act (50 U.S.C. App. §§ 1 et seq.) and various executive orders issued thereunder, executed Vesting Order No. 16217, vesting in him for the benefit of the United States “all right, title, interest and claim of any kind or character whatsoever” of six legatees under decedent’s will who were residents and nationals of Germany, amounting to nineteen twenty-fourths of the residuary estate.

*133 The first administratrix having been declared incompetent, a California bank was substituted in 1958 as administrator with the will annexed. In September 1960 the bank presented its account and petition for distribution. On…

I dissent.

As recognized in the majority opinion the determinative issue to be resolved by us is whether prior to the cutoff date of December 31, 1961, that portion of the estate subject to the vesting order of 1950 became “payable or deliverable to or . . . vested in possession” in the Attorney General of the United States.

There can be no doubt that in 1950 when, pursuant to the Trading With the Enemy Act (50 U.S.C. App. § 1 et seq.), the Attorney General of the United States, as successor to the Alien Property Custodian, executed Vesting Order No. 16217. there were thereby vested in him for the benefit of the United States the interests of the six legatees with which we are here concerned. But the word “vest” has more than one meaning and may mean “vest in right or interest” or “vest in possession. ’ ’

*138 It has long been settled law in California that money or property of- an estate is not payable nor deliverable to, nor does it vest in possession in, the heirs or legatees until an order of preliminary or final distribution has been made; that before the heir can enter upon the enjoyment and possession of his vested right he must await the completion of administration and…