501 Reporter's Statement of the Case Where final distribution is made by a fiduciary, the depositary should check the accounts and forward them to this office in time for this office to be represented, if necessary, before the fiduciary is discharged. * CONTINUING TRUSTS In certain continuing trusts, the depositary takes over no property, but receives from the fiduciary payments at regular periods of distribution. This money in turn is forwarded to this office at the time of the quarterly reports. In such cases the fiduciary continues to administer the trust, but the depositary should obtain an inventory and check the accounting filed by the fiduciary. The compensation for such services is 1 percent on the gross income, not to exceed, however, $1,200 per annum in any one trust. 14. In his radiogram to plaintiff of January 21, 1918, referred to in finding 12 as confirming plaintiff's appointment as depositary, the custodian instructed plaintiff to collect informal sworn reports from all persons holding property of "enemies" in the Territory of Hawaii and to take possession of such property except where it was in the possession of reputable banks or trust companies, and in his letter of the same date the custodian stated that he had "no doubt that those holding enemy property will deliver the same on your request" without formal demand. In that letter the custodian also advised plaintiff that he had sent forms for formal reports to certain designated companies, including the Kekaha Sugar Company, Ltd., and the Pioneer Sugar Company, Ltd., which companies had previously sent informal reports to the custodian; that he was sending it forms for reports which those holding enemy property were required to make and copies of the Trading with the Enemy Act, executive orders and other material, and that plaintiff should not hesitate freely to make use of the cable in requesting any advice or assistance from the custodian's office. 15. After the custodian on the preceding day had sent his telegram notifying plaintiff of its appointment as depositary, plaintiff on January 22, 1918, published in a newspaper in Honolulu, Hawaii, a notice of its appointment as depos Reporter's Statement of the Case 92 C. Cls. itary and notice to all persons holding property of enemies or allies of enemies to deliver such property to it as the depositary of the custodian and also deliver to it a sworn report as to such enemy-owned property. 16. Prior to the appointment of plaintiff as depositary, H. Schultze, one of the trustees referred to in finding 3, filed an informal report as of November 29, 1917, sworn to December 4, 1917, designated "Report of H. Schultze, Trustee, Otto Isenberg Trust Estate," in which he listed property held by him as trustee and showed as enemy beneficiaries under the trust Mrs. Helen L. Isenberg, Dorothea Gertrude Isenberg, and Paul Otto Isenberg. Among the properties in which Mrs. Helen L. Isenberg was shown as interested as a beneficiary were 500 Kekaha shares and 1,353 Pioneer shares; among those in which Paul Otto Isenberg was shown as interested as a beneficiary were 170 Kekaha shares and 381 Pioneer shares, and among those in which Dorothea Gertrude Isenberg was shown as interested as a beneficiary were 170 Kekaha shares and 381 Pioneer shares. The report did not disclose the extent of the interest of the beneficiaries in the property listed. 17. January 29 and February 2, 1918, after the publication by plaintiff on January 22, 1918, of the notice of its appointment as depositary, Schultze as trustee of the estate of Otto Ernst Isenberg delivered to plaintiff as depositary for the custodian the property held in that trust estate, including 500 Kekaha shares and 1,353 Pioneer shares in which, in the informal report referred to in finding 16, he had shown Mrs. Helen L. Isenberg to be beneficially interested; 170 Kekaha shares and 381 Pioneer shares in which he had shown Dorothea Gertrude Isenberg to be beneficially interested, and 170 Kekaha shares and 381 Pioneer shares in which he had shown Paul Otto Isenberg to be beneficially interested. The nature and extent of the interests of the beneficiaries were not shown, nor was there any indication whether some of the property represented corpus and some income. 18. March 9, 1918, H. Schultze, as trustee of the estate of Otto Ernst Isenberg, made a formal report to the custodian on a form prescribed by the custodian, in which he listed under the names of enemies and allies of enemies interested 501 Reporter's Statement of the Case in the estate or trust fund, Mrs. Helen Isenberg and seven of her children, including Dorothea Isenberg and Paul Otto Isenberg. The last known residence of Mrs. Helen Isenberg and Dorothea and Paul Otto Isenberg was shown as Berlin, Germany. The report stated that the widow (Mrs. Helen Isenberg) was entitled to income for life from the trust property, including the 500 Kekaha shares, and that the interest of the children was a "% interest each in principal after death of Helen Isenberg." In showing in the report the capacity in which the person reporting held the estate, the report showed Schultze holding the property as "Trustee" under appointment of December 1902, with a copy of the will of Otto Ernst Isenberg attached; that a petition for probate of the will had been filed November 22, 1902, in the Circuit Court of the First Judicial Circuit, Territory of Hawaii; that the last account was filed February 17, 1917; that the next account was to be filed July or August, 1918, and that a final account was to be filed after the death of Helen Isenberg. 19. On the same day, March 9, 1918, Schultze as guardian for Paul Otto Isenberg also filed a formal report with the custodian, in which he listed, among other property comprising the estate or trust fund, 170 Kekaha shares and 381 Pioneer shares, and that the enemy or ally of enemy interested in that trust fund was Paul Otto Isenberg. Paul Otto Isenberg was shown as the sole beneficiary, age 23 years, and Schultze was shown as guardian appointed January 28, 1903, in a probate proceeding in a Circuit Court of Hawaii; that the last account was filed February 17, 1917, and that a final report would be filed in 1920, which was the year in which Paul Otto Isenberg would become twenty-five years of age and the property would be distributable to him under the terms of the trust. A similar report was filed by Schultze as guardian of Dorothea Isenberg. 20. In the reports of Schultze as trustee to the custodian heretofore referred to, 500 Kekaha and 1,353 Pioneer shares were treated as part of the corpus of the trust estate, and the same treatment was accorded the 170 Kekaha and 381 Pioneer shares in the report of Schultze as guardian of Paul Otto Isenberg. Reporter's Statement of the Case 92 C. Cls. 21. March 11, 1918, plaintiff surrendered to the Kekaha and Pioneer Sugar Companies the stock certificates representing the 840 Kekaha shares and the 2,115 Pioneer shares which had been delivered to it by Schultze as trustee of the Otto Isenberg estate, as shown in finding 17, and caused those companies to issue in lieu thereof new certificates representing these shares in the name of the Trent Trust Company as depositary for the custodian, in which name that stock continuously stood until the sale thereof, as hereinafter set forth, one certificate being issued for the 500 Kekaha shares formerly held for the widow and two other certificates, each for 170 Kekaha shares, in place of the certificates held for Paul Otto and Dorothea Isenberg. 22. March 18, 1918, the Kekaha Sugar Company made a formal report to the custodian in which it reported as enemy- or ally-of-enemy holders of stock the "estate of Otto Isenberg, heirs in Germany." The report listed 840 Kekaha shares by designated certificate numbers. 23. March 18, 1918, the Pioneer Mill Company, Ltd., made a formal report to the custodian in which it reported as enemy- or ally-of-enemy holders of stock, estate of Otto Isenberg, 1,353 shares and Georg Rodiek and H. Schultze, trustees for Paul Otto Isenberg, with respect to 381 Pioneer shares. 24. May 7, 1918, which was subsequent to receipt by the custodian of the formal reports heretofore referred to, the custodian issued formal demands pursuant to section 7 (c) of the Trading with the Enemy Act and executive orders made in conformity therewith, as follows: (a) Upon Schultze as trustee, eight separate demands, one of them demanding the right, title, and interest of the widow, Helen L. Isenberg, in the Otto Isenberg trust estate, and each of the other seven demanding the right, title, and interest of the enemy-child named therein; (b) Upon Schultze as guardian, a demand for the right, title, and interest of Paul Otto Isenberg in the guardianship estate; (c) Upon Kekaha Sugar Company, Ltd., a demand for the right, title, and interest of the estate of Otto Isenberg in 840 shares of Kekaha common stock; 501 Reporter's Statement of the Case (d) Upon Pioneer Mill Company, Ltd., a demand for the right, title, and interest of Rodiek and Schultze, trustees for Paul Otto Isenberg, in 381 shares of Pioneer common stock standing on its books in the name of Paul Otto Isenberg. 25. After the issuance of the foregoing demands additional designations of the plaintiff as depositary were made by the custodian as follows: (a) May 10, 1918, as special depositary for the property of the "Estate Otto Isenberg, of Germany, an enemy," Trust 14010. (b) May 13, 1918, as special depositary of the property of "Paul Otto Isenberg, of Berlin, an enemy,” Trust 13746. (c) May 27, 1918, as special depositary of the property of the widow, Helen L. Isenberg, and the seven enemy children, separate trusts being indicated for the widow and each of the seven children, that for the widow being shown as Trust 17862. In June 1918, all these demands of the custodian were duly served by the plaintiff upon the respective demandees. Each of these demands contained excerpts from the Executive Order of Feburary 26, 1918, reading as follows: SEC. 1 (c). The words "right," "title," "interest," "estate," "power," and "authority" of the enemy, as used herein, shall be deemed to mean respectively such right, title, interest, estate, power, and authority of the enemy as may actually exist, and also such as might or would exist if the existing state of war had not occurred, and shall be deemed to include respectively the right, title, interest, estate, power, and authority in law or equity or otherwise of any representative of or trustee for the enemy or other person claiming under or in the right of, or for the benefit of, the enemy. SEO. 2 (a). A demand for the conveyance, transfer, assignment, delivery, and payment of money or other property unless expressly qualified or limited shall be deemed to include every right, title, interest, and estate of the enemy in and to the money or other property demanded as well as every power and authority of the enemy thereover. SEC. 2 (c). When demand shall be made and notice. thereof given, as hereinbefore provided, such demand and notice shall forthwith rest in the Alien Property Custodian such right, title, interest, and estate in and |