dissents.
On Appellant’s Motion for Clarification of the Opinion of the Court
PRETTYMAN, Circuit Judge.Appellant asks for clarification of the opinion of the court in this matter in three respects, or, in the alternative, for modification of the decision.
1. The first point upon which the appellant asks clarification concerns the view of the court as to whether the usufruct in shares of the Swiss corporation created a usufruct in the shares of American corporations owned by the Swiss corporation.
The usufruct here involved was originally created in 600 shares of stock in the Adam Opel Works, a manufacturer of motor cars in Germany. In 1931 these shares were sold, and the proceeds consisted of approximately $2,500,000 and 47,-625 shares of General Motors stock. Thereafter the major part of those proceeds was used to purchase certain investments in the United States, consisting of stock in corporations located in the United States. These shares were the assets vested by the Alien Property Custodian and the subject of the present lawsuit. The plaintiff is a Swiss corporation, which is a holding company acquired for the purpose of holding the proceeds of the sale of the 600 shares in the Adam Opel Works. It owned the vested property. All of its shares except three qualifying shares were placed by Fritz von Opel in lock box, and the key was delivered to an agent of Wilhelm von Opel. The interpostion of this wholly owned holding company did not destroy or disturb the usufruct in the proceeds of the 600 shares of Opel stock. The interposition was of form only and not of substance. The co-possession of the shares of the holding company, pursuant to the terms of the usufruct agreement, was sufficient to perfect that usufruct. Appellant would establish what seems to us to be a purely formal separation between the ownership of the assets and the ownership of the shares of a wholly owned holding company. Whatever ownership the Swiss corporation had in its assets was subject to the. usufruct agreement, and the co-possession of the shares of the holding corporation was sufficient to establish the requisite co-possession of its assets.
In the course of its discussion appellant says, “This Court rejects enemy ‘taint’ as as basis for its decision * * Appel*560lant misunderstands the statement in the opinion. We said, “This case does not involve a diluted ‘taint’; it involves the ownership by enemy nationals of the economic benefits of American business.” That statement was an a fortiori statement. The Supreme Court had made it clear that enemy taint was sufficient to support seizure and vesting and that indirect as well as direct interest was within the phraseology of the statute, “any property or interest”. Our observation was to the effect that in the case at bar the enemy interest was the complete and perfect sort of interest to which the statute was directed, and was not merely a taint. This is not a borderline case, in our view.
2. Appellant inquires as to our meaning in respect to 20 per cent of the shares, which it says is owned by Fritz von Opel. The usufruct agreement recited:
“The usufruct in the shares is not assigned to Fritz von Opel. It remains with Wilhelm von Opel and his wife, hereafter called the parents Opel, until the death of the survivor of them. However, 20% of all dividends and interest received will accrue to Fritz von Opel.”
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.
3. Appellant’s third request for clarification is really a request for modification and is premised upon Fritz von Opel’s ownership of a 20 per cent interest in the shares. Since we hold that he had no such ownership, except a contractual right to receive a portion of the dividends received by the enemy owners, we need not consider further this portion of the motion.
CLARK, Circuit Judge,' did not participate in the foregoing memorandum.