Docket No. 476.
UNITED STATES OF AMERICA
on behalf of
Philip Klein and John Victor Klein, a minor, by his Guardian,
Claimants,
v.
GERMANY.
PARKER, Umpire, rendered the decision of the Commission.
This case is before the Umpire for decision on a certificate of the two National Commissioners[a] certifying their disagreement.
Charles Klein, 48 years of age, a passenger, went down with the Lusitania. While he had taken the first step toward becoming an American citizen, through making and filing in 1909 his declaration of such purpose, he remained to his death a British subject. He was survived by two sons, Philip and John Victor, then 26 and 6 years of age, respectively, and by his wife, Lillian, who in October 1921, married, in England, Frank C. Flanagan, a British national.
Klein’s widow, who now signs her name Lillian Klein Flanagan, was at the time of her husband’s death and has since remained a British national. No claim is put forward on her behalf.
The claimants Philip and John Victor Klein, the only children of the decedent, were born in the United States and have remained American nationals.
Charles Klein was a talented and successful playwright and, under adverse conditions, had taken a high rank in his profession, both in America and England. His plays were popular and in great demand by prominent producers. The record contains affidavits of a number of such producers estimating Klein’s earning capacity, actual and potential, in varying amounts, ranging from $80,000 to $150,000 per annum. The royalties actually collected by his executors do not support these optimistic estimates. The federal tax paid by his executors on his income for the year 1914 was negligible. Excluding $100,000 life-insurance moneys received by his executors under a policy on his life payable to his estate, and also excluding the right, title, and interest in plays, literary properties, and unearned royalties, the net value of his estate did not greatly exceed $50,000. These facts as disclosed by the record tend to discount the partisan estimates by his surviving friends of his prospective income. There can, however, be no doubt but that his earning power and his actual income from his personal efforts were substantial, much of which income he spent in maintaining his domestic establishment and in satisfying the somewhat luxurious tastes of himself, his wife, and his two sons.
On April 16, 1913, Charles Klein made a will by the terms of which he bequeathed $5,000 to his brother Herman and $1,000 to his brother Manuel and named his wife and his two sons residuary legatees, one-half to his wife, one-fourth to Philip, and one-fourth in trust for John Victor. On February 20, 1914, Klein executed a codicil to this will, revoking these legacies and in lieu thereof bequeathing to his son Philip the sum of $30,000, to his son John Victor the sum of $20,000 in trust, and the residue of his estate to his wife. Under this will and its codicil there has been paid in cash (after deducting the inheritance taxes) to Philip Klein the sum of $29,750, to the testamentary trustee for the minor son, John Victor Klein, the sum of $19,850, and to Lillian Klein the sum of $87,098.25. There also vested in Mrs. Klein as residuary legatee all of the right, title, and interest which the decedent had in plays and literary properties, including unearned royalties.
This disposition of his estate by the decedent is significant in estimating the amounts, actual and relative, which he would probably have contributed, had he lived, from his personal earnings to his wife and sons.
Claim is made on behalf of the sons for property belonging to the decedent lost with him on the Lusitania, including his wardrobe, jewelry, and cash, aggregating in value $7,000. At the time of his death the decedent was a British subject. His property was impressed with his British nationality. His widow was at the time of his death and remains a British subject. The widow is the residuary legatee under the decedent’s will and as such would receive any award which might be made to his estate for loss of his property. However, no claim is here put forward on behalf of decedent’s estate, but only on behalf of his sons. Under the Treaty of Berlin it is clear that Germany is not obligated to pay the value of the decedent’s property which was lost because (a) the claim for such loss is British, (b) any award made would inure to the benefit of one who was at the time of the loss and on the day the Treaty of Berlin became effective a British national, (c) the only claim here put forward is on behalf of decedent’s sons, who under the terms of his will have no interest in the claim for property lost, and (d) the right to an award, if any, is in the executors of the decedent’s estate, on whose behalf no claim is here asserted.
John Victor Klein has sustained substantial pecuniary loss in being deprived, at the tender age of 6 years, of his father’s care, influence, and supervision over his education. Had decedent lived he would, without a doubt, have made, from his earned income, liberal provision for the education of his younger son.
The record indicates that the elder son, Philip, was employed by his father at a salary of $6,000 per annum and in addition thereto received substantial contributions from his father for the support of himself, wife, and child. It is contended that the decedent had tentatively agreed with his son Philip that the latter should handle and exploit the decedent’s plays, receiving therefor 25% of the net profits and royalties. The proposed agreement had been discussed and considered by not consummated, and therefore was not binding on either party. But aside from this, for the reasons announced in the previous decisions of the Commission, such a claim is entirely too remoteand speculative to form the basis of an award against Germany (see Decision in Life-Insurance Claims, Decisions and Opinions, pages 121-140, and Decision in Docket Nos. 417-418, Richard J. Hickson, Claimant[b]).
Applying the rules announced in the Lusitania Opinion, in Administrative Decision No. VI, and in the other decisions of this Commission to the facts as disclosed by the record herein, the Commission decrees that under the Treaty of Berlin of August 25, 1921, and in accordance with its terms the Government of Germany is obligated to pay to the Government of the United States on behalf of (1) Philip Klein the sum of twenty thousand dollars ($20,000.00) and (2) John Victor Klein (or the lawful guardian during his minority) the sum of thirty thousand dollars ($30,000.00), with interest on each of said sums at the rate of five per cent per annum from November 1, 1923.
Done at Washington February 25, 1925.
EDWIN B. PARKER,
Umpire.
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[a] Dated September 23, 1924.
[b] Ante, pages 439-444.
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