property may be ascertained it is clear the legal owner has a present interest in the property subject to prior disposition.
The expert witnesses agree there is no German law indicating the apportionment that should be made during the life of the usufruct of the entire interests of the usufructuary and legal owner. This is so because a usufruct may be terminated before its natural end only by agreement of the parties, who would also agree on the division. However, it was testified and the Court finds that a German Court would follow sound principles of accounting, would take into consideration the intention of the parties, and would compute the interests by analogy to the method of ascertaining the capital value of annuities and other life-long interests and benefits. Pursuant to German law, Fritz von Opel's interest would be established according to life expectancy tables as applied to the parents and the estimated income to be derived from the property during their lives. Since the critical date for determining whether property is enemy-held is the date of declaration of war, Societe Suisse Pour Valeurs de Metaux v. Cummings, 1938, 69 App.D.C. 154, 99 F.2d 387, certiorari denied, Societe Suisse Pour Valeurs de Metaux v. Murphy, 306 U.S. 631, 59 S. Ct. 463, 83 L. Ed. 1033; Schrijver v. Sutherland, 1927, 57 App.D.C. 214, 19 F.2d 688, certiorari denied 275 U.S. 546, 48 S. Ct. 84, 72 L. Ed. 418, this date must govern in determining the respective enemy and non-enemy interests in the property.
As to the right to receive 20% of the dividends and interest from the property, Fritz von Opel would have no claim for recovery. To the specific inquiry of plaintiff for interpretation of this clause in the gift agreement, the United States Court of Appeals for the District of Columbia on a motion for reconsideration said, 89 U.S.App.D.C. at page 170, 196 F.2d at page 560:
'That provision is perfectly clear. No part of the usufruct in the shares was assigned to Fritz von Opel. The whole of the usufruct remained with Wilhelm and his wife. Fritz von Opel was given a contract right to receive from Wilhelm and his wife 20 per cent of the dividends and interest received by them. This right in Fritz was a contract right and not a right in rem.'
This finding is binding on the Court. Fritz von Opel concedes that he may not recover if his right to the 20% income is found to be a mere contract claim. It having been so found, this right is without value.
An order will be entered denying recovery to intervener plaintiff. Counsel will submit appropriate findings of fact and conclusions of law in conformity with this opinion.
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