Papers Relating to the Foreign Relations of the United States, Transmitted to Congress, With the Annual Message of the President, December 6, 1880
No. 267.
Mr. White
to Mr. Evarts.
Berlin, March 20, 1880. (Received April 8.)
Sir: I have the honor to inclose a report relating to unclaimed estates in Germany and the laws affecting them, made at my request by Mr. Chapman Coleman, the second secretary of this legation. We have yearly a large number of applications from various parts of the United States, for information or aid regarding great estates in Germany supposed to be waiting for heirs. They are all more or less indefinite, many sad, and some ludicrous.
Mr. Coleman appears to have studied the matter very thoroughly, and it occurs to me that, were his report printed, it might save the Department and this legation considerable correspondence and many of our fellow-citizens the heart sickness which comes from hope long deferred.
I have, &c.,
Mr. Coleman to Mr. White.
Berlin, March 20, 1880.
Sir: I have the honor, pursuant to your instructions, to submit the following report upon the applications made to this legation by persons in the United States for assistance in obtaining possession of interests in estates in Germany to which they suppose themselves entitled, and upon the German laws bearing upon the subject of inheritance.
An investigation of the archives of this legation shows that there have been many hundreds of such applications, and that the legation has almost invariably written to the applicants advising them as seemed best, and giving its personal attention to their business when it conveniently could, and when the data furnished made it possible to do so. In many instances a circular, which had been prepared for the purpose, was sent in reply to these communications, informing the writers where the locality of the supposed estate could be made out; that the nearest consul of the United States would be permitted by his instructions to attend to private business when he could do so without detriment to his official duties, and advising them to apply to him, making proper provision for expenses.
[Page 404]In the great majority of eases, however, it was apparent that the claim, if it ever had been good, was long since barred by limitation. In most instance the dates, localities, names of testators or others from whom the estates were supposed to be derived, if given at all, were so imperfectly stated that any effort to ascertain even that such estates existed or had existed seemed hopeless. Names as common here as Smith, Brown, and Jones are in the United States were often given, without baptismal names, as those of persons under whom estates valued at from one hundred and sixteen millions down to as many hundreds of thousands of dollars, and accruing as far back as fifty, eighty, one hundred or two hundred years, were claimed. These communications often disclose the fact that the hopeful claimants are generally very poor, and, misled no doubt frequently by designing persons seeking employment as agents or attorneys, had repeatedly expended considerable sums of money to prosecute their extravagant claims. In all the cases, at all of the nature described, which have been investigated by the legation at Berlin, it has been, it is believed invariably, ascertained that the claims were utterly without foundation.
While with us an administration with its full inventories of personal and real estate, its accounts of sales of both classes of property, its lists of debts due to and by the estate of the deceased, its preliminary and final accountings before the probate court, its releases, &c., all recorded at length, and readily accessible to the public at large gratis or upon payment of a small fee, is the almost universal rule, here it is the great exception. This constitutes a serious embarrassment to the investigator at the outset, although the vast saving of labor and expense which is accomplished by allowing those interested in the estate to settle the inheritance among themselves amicably, as they do in the vast majority of cases, may perhaps be regarded as a more than adequate compensation for such inconvenience. Perhaps the only resort to a court that is absolutely necessary is when the heir desires to obtain the transfer to his name on the land register (Grund-Buch) of the real estate he inherits, which is accomplished by presenting the certificate of heirship obtained from the court to the custodian of the register.
Among the living the title to land is conveyed absolutely when grantor and grantee appear together before the official in charge of the appropriate land register, and the former consenting to the transfer to the latter, the entry of the transfer is actually made. (See Prussian “Gesetz über Eigentliums-Erwerb” of May 5, 1872, § 2; for full information on this subject, see Alex. Achilles’ Prussian “Gesetz uber Grund Eigenthum und Hypotheken-Recht” of May 5, 1872, published by Gutentag, Berlin.)
As regards wills, a will to be valid according to Prussian law must have been deposited with a court during the lifetime of the testator. There is, however, an exception as regards the Rhenish province; there a will written entirely in the testator’s handwriting, and subscribed by him (holographic will), is valid without having been so deposited. Certified copies of the will are furnished on demand to all persons materially interested, and to all lawyers acting in a professional capacity. The will may pass the entire estate with the exception of the duty portion (Pflichttheil), a portion of the estate due to the children; in the absence of such, to parents; and always to husband or wife, the proportion due to each varying according to the number thus inheriting. A child cannot be disinherited except for certain grave offenses against the testator. (See Märcher’s Nachlassregalirung [Regulation of Inheritance] for Prussia, published by R. von Decker, Berlin 1879.)
The will is opened by the court upon the motion, supported by a certificate of the death of the testator, of any interested person, and its contents are made known to all who are named in it as heirs or legatees. If no motion to open the will is made, and the fact of the testator’s death be notorious to the court, it opens the will six weeks after the testator’s death, ex officio.
When fifty-six years since the deposit of the will have elapsed, and the death of the testator has not been brought to the knowledge of the court, the supposed heirs are solicited by public advertisement to apply for publication. This step is taken upon the legal theory that the testator is dead, the fourteen years at which maturity for making a will is reached, together with the fifty-six, making “three score and ten,” the assumed limit of life. If publication is not applied for, the court opens the will six months later to see if charitable institutions are mentioned as heirs or legatees. If found, these are then called upon to ascertain whether the testator be dead or living; the will is then closed again for the time being, with the seal of the court.
When the fact of the testator’s death has been established, or when he has been declared dead after public summons by the court (the Amst-court), which can be done upon the motion of any interested person when the testator has not been heard of for a period of ten years, the will is reopened and published.
In case there is no will, the husband or wife and relations by blood must submit their claims to the court of the district in which the death occurred. A claim to the inheritance must be substantiated in accordance with the provisions of the Prussian statute of March 13, 1869 (Gesetzsammlung No. 25, page 473).
A certificate of heirship must be issued by the court to the person whose title to the inheritance appears to the court to be made out. The claimant must furnish adequate [Page 405] proof of death; lie must solemnly make declaration, in lieu of oath, that heirs as near as or nearer in blood than himself are unknown to him, and that he is not aware of the existence of a will. If there be several heirs, this proof may, in the discretion of the court, be demanded of one or more or all of them. If the court deem further information necessary, an advertisement galling upon unknown heirs to submit their claims by a certain day, at least three months distant, and warning them that a certificate of heirship will be issued thereupon, may be, and in case no heirs come forward must be, inserted by the court in several newspapers and always in the Imperial Gazette at Berlin (Reichsanzeiger), a file of which should therefore be sought and consulted in case of need. If there is no response to this appeal, the state is entitled to regard the estate as derelict, and to enter into possession (§§ 4 and 25, Part II, Title 16, of the Prussian Landreeht).
If a rightful heir asserts his claims within the next thirty years, his title is acknowledged, but he must recognize as binding all transactions between the state or between a relative who may have lawfully taken possession in the mean while, and third persons (§ 27, ibid., and § 459, Part I, Title 9, of the Prussian Landrecht, and § 6 of the law of March 13, 1859, before referred to).
Possession by the state for thirty years under these circumstances, and also undisturbed possession by another for this period, gives a valid title. Sometimes in contested cases, or pending the search for an heir who cannot be found, an estate remains in the custody of a curator (Pfleger), appointed by the court; and during such period, which does not exceed a few years, the statute of limitation does not run. Consequently, this brief period, added to the thirty years, constitutes the entire period during which in any case the person in possession could be ousted by a new claimant, however good the claim of the latter may once have been.
Any inquiry into the existence even of an estate is useless unless the locality can be given with such particularity as to enable the investigator to apply to the appropriate probate or Amts-court, of both of which species of courts there are several hundreds in Prussia.
As regards those parts of Germany in which the French and Roman laws prevail, the law on the subject of this report is not essentially different.
It is remarked in this connection that all existing differences in the law on the subject of this report in the various parts of the German Empire will in all probability have disappeared within three or four years, as it is confidently expected that a general German civil code now being prepared will by that time have been completed and have attained the force of law.
It is stated, in conclusion, that so far as the legation has been able to ascertain, there are in Germany no large estates that for thirty or more years have been awaiting distribution to unknown heirs in the hands of the government or of anybody, and that all efforts to discover such estates that the legation has ever made or ever heard of have proved fruitless.
Wherever a court is mentioned herein, the probate court of the particular district is meant, unless the word is otherwise qualified.
Hoping that in the foregoing abstract of the law of inheritance in this country a sufficient test of the advisability of prosecuting a particular claim may have been furnished, and material afforded that may prove a useful guide to persons prosecuting well-founded claims, and referring for more detailed information to the laws and authorities hereinbefore cited,
I have, &c.,
Second Secretary of Legation.