
    IN THE MATTER OF THE ESTATE OF MARTIN A. ECKES, DECEASED. MORITZ HEIM, APPELLANT.
    
    March 6, 1925.
    No. 24,427.
    Remedy of attorney governed by Trading with the Enemy Act.
    The Alien. Property Custodian having made a demand upon the administrators for the - share of an alien enemy legatee in the estate of their decedent, the court properly declined to entertain a subsequent application of the attorney who had represented said legatee in the probate of the will and administration of the estate to have an attorney’s lien established and paid out of the share decreed to said legatee. The remedy of the attorney is under section 9 of the Trading with the Enemy Act.
    
      From an order of the probate court for Hennepin county, Dahl, J., denying an application to determine the value of services rendered by Moritz Heim as attorney for the widow of Martin A. Eckes, deceased, and a lien for the same, he appealed to the district court for that county where the order of the probate court was affirmed by Dickinson, J. From that order, Moritz Heim appealed.
    Affirmed.
    
      Moritz Heim and Thompson, Hessian & Fletcher, for appellant.
    
      Brady, Robertson & Bonner, Frederic D. McCarthy and Raymond A. Scallen, for respondents.
    
      
       Reported in 202 N. W. 492.
    
   Holt, J.

This controversy arose on account of the Trading with the Enemy Act of Congress, October 6, 1917, c. 106 (40 St. 411, 425), and subsequent amendatory and supplementary acts.

Martin A.-Eckes died testate in Germany in July, 1914. Administrators with the will annexed were appointed in March, 1918, by the probate court of Hennepin county. In October of the same year the Alien Property Custodian made a demand upon them for the right, title and interest in the estate of Katharina Eckes, the widow, who was an alien enemy being then a citizen and resident of Germany. The appellant, Mr. Heim, appeared for the widow in the administration of the estate, advanced money and rendered services as an attorney for her. A few days before the rendition. of the final decree, he filed his claim for the services in the probate court, and, on notice to the custodian and Mrs. Eckes, asked to have that court determine the value of his services and the amount of money advanced in order to have a lien therefor. The court denied the application. On appeal to the district court the same result was reached. He appeals from the judgment in the district court.

But for the Trading with the Enemy Act, Mr. Heim would, clearly be entitled to an adjudication in the probate court as to the value of his services and expenditures and to have the amount decreed a lien and enforced against the distributive share of his client, the widow. Section 8876, G. S. 1923. However,-at the hearing in the courts below, as well as here, tbe attorney for tbe custodian, as well as the one wbo now appears for tbe widow, take tbe position that in virtue of tbe act of Congress referred to and tbe action of tbe President thereunder tbe whole share of tbe widow must be turned over to tbe custodian. We think this accords with tbe view expressed by tbe Supreme Court of United States.

In Central Trust Co. v. Garvan, 254 U. S. 554, 41 Sup. Ct. 214, 65 L. ed. 403, the custodian brought suit to obtain possession of what be bad determined to be enemy property, and it was held that section 7 of tbe act authorized immediate seizure of property determined to be alien enemy property, and if tbe custodian resorted to tbe courts to get possession tbe claim or interest of another person thereto could not be adjudicated in such action, but such person would have to protect bis rights by proceedings, under section 9 of tbe act, after tbe property was turned over to tbe custodian.

Stoehr v. Wallace, 255 U. S. 239, 245, 41 Sup. Ct. 293, 65 L. ed. 604, was treated as a suit under tbe provision of section 9, and it was held that a determination by tbe alien property custodian that certain property is enemy property justifies an immediate seizure, using this language: “There is no warrant for saying that tbe enemy ownership must be determined judicially before tbe property can be seized, and tbe practice has been tbe other way. Tbe present act commits tbe determination of that question to tbe President, or tbe representative through whom be acts, but it does not make bis action final. On tbe contrary, it distinctly reserves to any claimant wbo is neither an enemy nor an ally of an enemy a right to assert and establish bis claim by a suit in equity unembarrassed by tbe precedent executive determination.” This was said in view of tbe provision of section 9.

To tbe same effect is Commercial Trust Co. v. Miller, 262 U. S. 51, 56, 43 Sup. Ct. 486, 67 L. ed. 858, which was also a suit by tbe custodian to obtain possession of property which be bad determined to be enemy property, being bonds, etc. held by a trust company for tbe joint account of a French and a German citizen. Tbe court held that tbe custodian bad tbe right to seize tbe whole property, citing Central Union Trust Co. v. Garvan and Stoehr v. Wallace, supra, and saying: “Those cases decide, as we have also seen, that the suit is of as peremptory character as ‘seizure in pais’ and is the dictate and provision for the emergency of war, not to be defeated or delayed by defenses, its only condition, therefore, being the determination by the Alien Property Custodian that it was enemy property. It was recognized that there is an implication in the act that mistakes may be made, but the act assumes ‘that the transfer will take place whether right or wrong.’ In other words, it is the view of the opinions that the act provides for an evercise of government, but also provides, as we have said, redress for mistakes in its exercise by the claimant of the property filing a claim under § 9, which, if not yielded to, may be enforced by suit.”

In re Miller, 281 F. 761, 772, it is said: “The right to the custody of the property herein involved vested in the Custodian, became a vested right in him on the day when the demand was made and the notice thereof was given. This is so because of the express provision to that effect in the executive order of the President issued on February 26, 1918.” An appeal from this decision was dismissed by the 'Supreme Court of United States in 262 U. S. 760. See also Application of Miller, 288 F. 760, and Koscinski v. White, 286 F. 211, that seizure is effected when the demand is made by the custodian and that appellant’s proper remedy is under section 9 of the act.

Based on the well-recognized rule that an alien enemy is permitted when sued in the courts of this country to employ an attorney to defend his rights, appellant argues that the attorney so employed should be protected as to his statutory lien before the property is turned over to alien property custodian. Keppelmann v. Keppelmann, 89 N. J. Eq. 390, 105 Atl. 110, is relied on. That decision was rendered prior to the Federal decisions above cited, and is in some respects at variance with them. The court stated that merely an interest of an alien enemy in property does not warrant its seizure by the custodian. Here the custodian laid claim to the whole of the distributive share of. Mrs. Eckes as ascertained by the probate court, but objects to that court establishing and enforcing a subsequently asserted attorney’s lien against such share. So does Mrs. Eckes. Although it would appear eminently proper that the court in which appellant rendered his services and which is authorized by our statute (section 8876, G. S. 1923), to fix the value thereof, and enforce it against the distributive share of the widow should be permitted to act, still, as we view the opinions of the Federal courts, the fact that the alien property custodian demanded of the administrators the whole of such share and still insists thereon must lead to the conclusion that the only remedy left appellant is to proceed under section 9 of the act. Even as a claim for debt he can assert his right to redress thereunder. Rockwood v. Miller, 290 F. 341, 53 App. D. C. 366. This result gives appellant a remedy and avoids an unseemly conflict between the administrative acts of the Federal government and state courts.

Affirmed.  