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arrives; authorizes (article 4) the consular representative, when the estate is liquidated, to deliver the proceeds to the persons entitled to them in conformity with the instructions which he shall receive, being then considered by the courts of the country as a representative of the heirs; and provides (article 6) that, in default of a consular representative, the probate judge shall take charge of the estate.
The Department of State stated that it could not accept the provisions of the decree, on the ground (1) that the United States could not by treaty establish such conditions with regard to Brazilian subjects dying in any of the States of the Union; (2) that the provisions of the decree conflicted with the rules which generally prevailed in several States, (a) in that it contained no provision requiring consuls when acting as administrators to give security, (b) that it appeared to recognize the administration taken out of the estate of possibly a mere transient resident as the principal instead of ancillary administration, and (c) that it contained no provision recognizing the lex domicilii as to the distribution of personalty. Mr. Bayard, Sec. of State, to Mr. Armstrong, No. 137, Jan. 30, 1889, MS.
Inst. Brazil, XVII. 393.
treated in a full and interesting despatch of Mr. Trail to Mr. Bayard,
In July, 1888, Mr. Vifquain, United States consul at Colon, Colombia, sold at auction to a Mr. Potoin three houses belonging to the estate of a Mrs. Smith, a deceased citizen of the United States, and situated on land leased from the Panama Railroad Company. This action was taken by the consul under section 10, Article III., of the consular convention between the United States and Colombia, which provides that the consuls of the contracting parties may take possession of and sell the “movable property” of individuals of their nation who may die without leaving executors or heirs at law. The Colombian courts afterwards held, in a suit for the possession of the houses, that they were not “movable property;” that the consul could not make title to them, and that Mr. Potoin must surrender them to a curator appointed by the local authorities. Subsequently, Mr. Potoin applied to the United States for reimbursement. The Department of State replied that it had no funds at its disposal and no authority to pay such a claim, and that the money paid by Mr. Potoin for the houses had been used by the consul in paying costs and the decedent's debts, with the exception of less than a hundred dollars which had been paid to her heirs. The Department of State added that the local courts undoubtedly had jurisdiction to pass on the question whether the houses were “movable property;" that, in view of the difference of legal opinion which had been entertained concerning it, it could not be said that there had been a denial of justice, and that there appeared therefore to be no ground for presenting a claim against the Colombian government. Mr. Abbott, min. to (Colombia, to Mr. Blaine, Sec. of State, Dec. 12, 1889,
For. Rel. 1890, 231; same to same, April 24, 1890, id. 254; Mr.
of consuls to take possession of and sell “ movable property” is sub-
view. (For. Rel. 1890, 255, 262; For. Rel. 1891, 469–186.) The view taken by the United States as to the rights of the consul to act
as administrator under the treaty finds support in Mr. Marcy, Sec. of State, to Mr. Aspinwall, Aug. 21, 1855, 44 MS. Dom. Let. 270.
It was alleged in the case of one Pisani, an Italian subject who died near Brownsville, Texas, in 1883, that the local authorities failed to give the notice required by the treaty with Italy of his death to the Italian consul, and that the estate of the deceased had been so administered as to cause its practical loss to his heirs. In view of these allegations, the Italian minister at Washington proposed that Italian consuls in the United States be authorized, as he said that American consuls were in Italy, directly to settle the estates of their deceased countrymen. The Department of State replied that, in view of the fact that the administration of estates in the United States was under the control of the respective States, it was thought that such an international agreement should not be made. The Department added that it was highly probable that the local courts, in cases where foreigners died within their jurisdiction intestate and without heirs or creditors, would, on application of decedent's consular representatives residing in their jurisdiction, grant him the administration of the estate.
Mr. l'hl, Act. Sec. of State, to Baron Fava, Italian ambass., May 24, 1894,
For. Rel. 1894, 366; Mr. l'hl, Act. Sec. of State, to gov. of Texas,
Mr. Chl, in his note to Baron Fari, adverted to the practical difficulties
sometimes growing out of the fact that the local courts, in which estates were administered, were frequently remote from the place where the nearest consular officer was stationed, as, for example, in the State of Texas, in whose vast territory there was only one Italian consul, who was stationed at Galveston.
By the law of nations a consular officer is the provisional conservator of the property within his consular district belonging to his countrymen who die therein. The United States Consular Regulations direct consular officers, when foreign local authorities institute proceedings in relation to the property of deceased Americans who leave no representative in the foreign country, to intervene by way of observing the proceedings, “but it is not understood that this involves any interference with the functions of a public administrator.” In conformity with this rule are to be construed the stipulations in the treaties of the United States with Austria-Hungary, Belgium, Germany, Great Britain, Roumania, and Servia, which give to consular officers the right to appear personally or by delegate in all proceedings on behalf of the absent heirs or creditors of their deceased countrymen, until they are otherwise represented. Mr. Hay, Sec. of State, to Mr. Wolcott, U. S. S., Feb. 3, 1900, 242 MS. Dom.
d'Arschot, Belgian chargé, Oct. 5, 1891, MS. Notes to Belg. VII. 531.
Paragraph 409 of the Consular Regulations of 1896 is not altogether consistent, for, while it declares that “a consular officer is by the law of nations and by statute the provisional conservator of the property within his district belonging to his countrymen deceased therein," and that it is his duty" to take possession of the personal estate left by any citizen of the United States," yet it goes on to say that “ he has no right, as a consular officer, apart from the provisions of treaty, local law, or usage, to administer on the estate, or in that character to aid any other person in so administering it, without judicial authorization," and restricts his duties to “guarding, and collecting the effects and to transmitting them to the United States, or to aid others in so guarding, collecting, and transmitting them, to be disposed of pursuant to the law of the decedent's State." “ This qualifying limitation upon his powers follows an opinion of AttorneyGeneral Cushing (7 Op. Att. Gen. 274). It implies that the power and duty of the consul to so guard, collect, and transmit the decedent's estate is not exclusive. If those powers are not conferred upon him by treaty, local law, or usage, it is his alternative duty to aid others upon whom those functions devolve under local law.
Section 389 of the Consular Regulations prescribes that the authority of consuls with respect to the effects of deceased citizens can be exercised, however, only so far as is permitted by the authorities of the country, or is accorded by established usage, or is provided for by treaty or the laws of the country,' meaning the lex loci. There is no treaty stipulation between the United States and Great Britain on this point. Article IV. of the treaty of 1815, which is still in force, subordinates the consul's action to the laws of the country to which he is sent.”
Mr. Hay, Sec. of State, to Mr. White, chargé at London, No. 1109, Jan. 15,
1903, For. Rel. 1903, 487. The quotation made above, which refers to par. 409, Consular Regulations of 1896, is given from the text of Mr. Hay's instruction, which does not foliow the precise language of the Regulations.
Consuls can not intervene as of right in the administration of a decedent's estate, except by way of surveillance.
Cushing, At. Gen., 1856, 8 Op. 98.
A provision in a treaty that a consul may ex-officio administer upon the estates of citizens of his nationality dying within his jurisdiction without legal heirs there, gives no right of reclamation against the United States for the value of the property of such a decedent improperly administered on by a State court, the consul having omitted to avail himself of legal remedies to obtain possession of the goods.
Black, At. Gen., 1859, 9 Op. 383.
8. Neither under the law of nations, nor the laws of the United States, nor any treaty with the King of Sweden and Norway, can the consul of the latter take from an administrator the succession of a Swede, opened in this State, in which, though not domiciled, the deceased has left property. Succession of Thompson, 9 A. 96.
9. Such a right would be incompatible with the sovereignty of the State, whose jurisdiction extends over the property of foreigners, as well as that of citizens found within its limits. C. C. 9; Ib. Constitution, II. (c), 1, No. 4.
Hennen's Louisiana Digest, ed. 1861, p. 13.
A foreign consul in the United States has authority to receive the distributive shares to which persons residing in his country are entitled from the estate of a person dying in the United States.
In re Tartaglio's Estate, 12 Misc. 245, 33 N. Y. S. 1121.
Article VIII. of the consular convention between the United States and the German Empire of December 11, 1871, authorizing consuls to act as the “ legal representatives” of their absent countrymen in certain cases, does not authorize a consul to sue in the capacity of administrator to recover wages due to a deceased countryman, unless he represents heirs who are entitled to the money and who are also his countrymen.
The Gen. McPherson, 100 Fed. Rep. 860.
Under article 44 of the alien law in force in Cuba the consul of an intestate alien is entitled to intervene and administer the estate, subject to certain exceptions.
Griggs, At. Gen., April 26, 1900, 23 Op. 93.
Julius Saposnik, a Russian subject, died at Cambridge, Mass., in 1902, leaving personal property to be administered there. He had at the time of his death a wife and three minor children in Russia; he left no heirs at law or next of kin in the United States. The Russian vice-consul at Boston applied to the probate court to be appointed administrator of his estate, but thě court dismissed the petition and granted letters to the public administrator. From this decision an appeal was taken to the supreme judicial court. This court, Lathrop, J., delivering the opinion, reversed the judgment of the probate court. By Art. VIII. of the treaty between the United States and Russia of 1832, it is stipulated that consular officers “ shall enjoy the same privileges and powers of the most favored nations." The treaty between the United States and the Argentine Republic of 1853 (Art. IX.) gives to consular officers the right to intervene in the administration of the intestate estates of their deceased country
A similar clause may be found in Art. VIII. of the treaty between the United States and Costa Rica of 1851, as well as in other treaties. The supreme judicial court (disapproving Lanfear v. Ritchie, 9 La. Ann. 96; and approving Estate of Tartaglio, 12 N. Y. Misc. 245, and In re Fattosini, 33 id. 18) held that these stipulations were within the treaty-making power; that the vice-consul therefore had a right to administer on the estate; and that, as he had applied for letters of administration, and had thus submitted himself to the court, he should be required to give bond and to conduct himself in other respects as would any other administrator.
Wyman v. McEvoy (1906), Supreme Judicial Court of Massachusetts. I
am indebted for an advance report of this interesting decision to Frederic R. Coudert, esq., of the New York bar, who was of counsel for the Russian vice-consul. The decision has since been published in the New York Law Journal of April 16, 1906.
7. REPRESENTATION OF PRIVATE INTERESTS.
The services of American consular officers cannot be claimed by citizens of the United States for the transaction of private business. Consular officers are at liberty to lend their services in such matters