Docket No. 639.
UNITED STATES OF AMERICA
on behalf of
Beatrice Brown Witherbee and Mildred W. Gray as Administratrix of the Estate of Alfred S. Witherbee, Deceased,
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.
Beatrice Brown Witherbee, then 25 years of age, her son and only child, Alfred S. Witherbee, Jr., about 4 years of age, American nationals, and her mother, May C. Brown, a widow, 51 years of age, were passengers on the torpedoed Lusitania. Mrs. Witherbee was rescued but her son and mother were lost. Mrs. Witherbee was the only child and sole heir-at-law of her mother, whose estate she inherited. Mr. and Mrs. Witherbee were married on May 1, 1910, then aged 49 and 20 years respectively. A claim for a large amount dated December 27, 1915, was first lodged with the Department of State of the United States of America by Alfred S. Witherbee, an American national, the husband of Beatrice Brown Witherbee, as her agent, and at the same time a claim on his own behalf, in which latter there appears an item of $10,000 “for loss of society and consortium of wife”. This latter item, among others, is still being pressed by the administratrix of Mr. Witherbee’s estate, but it can not be taken very seriously in view of the fact disclosed by the record that Witherbee deserted his wife, without reasonable cause, on or about April 15, 1916, at Monte Carlo, and that such desertion continued until July 28, 1919, when his wife procured a court decree in Philadelphia absolutely divorcing him.
Thereafter Witherbee died intestate in London, on June 19, 1922. He had been married three times, had divorced his first wife, and had been divorced by his second and third wives. His only surviving child – the child of his second wife – then Mrs. Mildred W. Eyssell, now Mrs. Mildred W. Gray, who was born and has always remained an American national, as his sole heir applied to the court at Kansas City, Missouri, where she resided, for letters of administration of his estate, which were issued to her. The claims filed against this unsettled estate aggregate approximately $100,000 and the assets are of doubtful value.
In April, 1915, Witherbee and his wife had taken up their residence in London, where they intended to live. Mrs. Witherbee returned to New York for her mother and son. With them she embarked on the Lusitania. She took with her $2,060 in cash belonging to her husband and personal effects also belonging to him of the value of $1,500. These personal effects and cash were lost with the Lusitania.
The claim first presented on behalf of Beatrice Brown Witherbee for damages suffered by her resulting from the death of her son and her mother was withdrawn under instructions from her to her private counsel, to whom she also wrote that “It is my deepest wish that the tragic death of my little son is not turned into profit or made a matter of money consideration” (see memorandum of private counsel for claimants, filed herein September 19, 1924).
Mrs. Witherbee sustained personal injuries in the sinking of the Lusitania and also lost personal effects of her own of substantial value. Following her divorce from Witherbee she was married, on November 19, 1919, to Alfred E. Jolivet, then and now a British subject, and under the statutes of the United States and Great Britain then in effect she thereupon relinquished her American citizenship and became, and still is, a British subject. Under the rule announced by this Commission in its Administrative Decision No. V and for the reasons therein stated, a claim on her behalf does not fall within the terms of the Treaty of Berlin, as she was not an American national when that Treaty became effective (see also the decision of the Commission in Docket No. 2262, United States of America on behalf of Maud Thompson de Gennes, Decisions and Opinions, pages 215 – 219).
Applying the rules announced in the Lusitania Opinion, in Administrative Decision No. V, 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 Mildred W. Gray (formerly Mildred W. Eyssell) as Administratrix of the Estate of Alfred S. Witherbee the sum of three thousand five hundred sixty dollars ($3,560.00) with interest thereon at the rate of five per cent per annum from May 7, 1915; and further decrees that the Government of Germany is not obligated to pay to the Government of the United States any amount on behalf of Beatrice Jolivet (formerly Beatrice Brown Witherbee).
Done at Washington March 19, 1925.
EDWIN B. PARKER,
Umpire.
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[a] Dated December 22, 1924.
53281°–25—-38
