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See, also, Mr. Magallon to Mr. Marcy, Jan. 10, 1834, MS. Notes from
Spain ; Mr. Marcy, Sec. of State, to Mr. Nones, Dec. 23, 1853, 42 MS.
Russian consular officers are forbidden to authenticate for use in Russia the papers of natives of that country who emigrated without permission. The United States has remonstrated against this regulation without effect.
Mr. Blaine, Sec. of State, to Mr. Wurtz, chargé, No. 41, June 27, 1889, MS.
Inst. Russia, XVI. 602; Mr. Blaine, Sec. of State, to Mr. Distleman,
Carey, M. C., Oct. 6, 1892, 188 MS. Dom. Let. 401.
applied in the case of a person claiming, after attaining her majority,
chargé, No. 140, Sept. 11, 1888, MS, Inst. Russia, XVI. 553.) Where the Russian consul-general at New York refused to authenticate
certain signatures in a matter of real estate in Russia, it was on one occasion advised that the documents be authenticated under the great seal of the State of New York, with a view to their being authenticated by the Department of State and then by the Russian minister at Washington. (Mr. J. C. B. Davis, Assist. Sec. of State, to Mr. Walter, June 16, 1882, 142 MS. Dom. Let. 429.)
The refusal of Russian consular officers to visé the passports of Jews or to authenticate the documents of Jews relating to property in Russia has been the subject of unavailing remonstrance on the part of the United States.
Mr. Bayard, Sec. of State, to Mr. Wurtz, chargé, No. 140, Sept. 11, 1888,
MS. Inst. Russia, XVI. 553 ; Mr. Wharton, Act. Sec. of State, to Mr.
White, min. to Russia, No. 60, Feb. 28, 1893, id. XVII. 147.
The refusal of an Austro-Hungarian consul to certify to the official character of a notary public, “ while it may be deemed unfriendly or unneighborly, affords no ground for a complaint to the AustroHungarian government, or for a claim for damages. It has been held that an American consul can not be required to certify to the official character or acts of a foreign notary public. (12 Opinions AttorneysGeneral, 1.)
This Department can not undertake to procure for you the certification of the Austro-Hungarian legation or of the consul to the official character of your acts."
Mr. Adee, Act. Sec. of State, to Mr. Moeser, July 13, 1894, 197 MS. Dom.
6. ADMINISTRATION OF ESTATES.
“In Austria-Hungary, Belgium, Germany, Italy, and Netherlands (and colonies) the local authorities are required to inform consuls of the death of their countrymen intestate or without known heirs. In Germany, Roumania, and Servia consuls have the right to appear for absent heirs or creditors until regularly authorized representatives appear. In Mascat [Muscat), Morocco, Persia, Peru, Salvador, Tripoli, and Tunis they may administer on the property of their deceased countrymen. In Colombia they may do so, except when legislation prevents it. In Costa Rica, Honduras, and Nicaragua they may nominate curators to take charge of such property, so far as local laws permit. In Paraguay they may become temporary custodians of such property. In Germany they may take charge of the effects of deceased sailors."
Consular Regulations of the United States (1896), § 91, p. 35. With reference to a communication touching the efforts of the British consul in New England to obtain possession of the effects of the late Governor Delancey, of Tobago, who had died at Portsmouth, V. H., Mr. Pickering, citing a clause in Article XVI. of the Jay treaty to the effect that consuls should "enjoy those liberties and rights which belong to them by reason of their function," said: “Now, I conceive one of the consular rights and a duty to be to receive, inventory, take care of and account for the effects of any subject of the nation by which the consul is appointed, and who dies within his jurisdiction or consulate.” He added that the subject was often explicitly regulated by treaties, but that he understood it to be “a general usage to which civilized nations have tacitly or practically assented."
Mr. Pickering, Sec. of State, to Mr. Smith, May 13, 1799, 11 MS. Dom.
“There is believed to be no difference between the death of a consul and that of any other private foreigner in respect to his effects. The consular office is not known to create any. Upon the death of any foreigner, whether consul or not, if he has left no family nor relations to take charge of his estate at the place of his death, a practice prevails to allow the consul of the country of the deceased to put his official seal upon the effects of the deceased, until the local law operates upon them by a grant of administration, or if no such administration be granted, for the purpose of transmission to the kindred of the deceased."
Mr. Clay, Sec. of State, to Mr. Vaughan, British min., Nov. 12, 1827, MS.
Notes to For. Legs. III. 400.
“ The consuls of the United States are authorized and required to act as administrators on the estates of all citizens of the United States dying intestate in foreign countries and leaving no legal representative or partner in trade. Indeed, this is one of the most sacred and responsible trusts imposed by their office, and in this respect they directly represent their government in protecting the rights and interests of the representatives of deceased citizens. The consul of the United States, therefore, was the only person who could legally touch the property left by the deceased Parsons. It was his duty to deposit the proceeds thereof in the Treasury of the United States, there to await the decision of the proper authorities as to its final disposition.”
Mr. Marcy, Sec. of State, to Mr. Aspinwall, Aug. 21, 1857, 4 MS. Dom.
“ The consuls of the United States in Mexico have no authority to appoint administrators of the estates of American citizens dying in Mexico. There is no consular treaty or convention existing between the United States and Mexico, and, in the absence of treaty regulations on the subject, the administration of the estates of United States citizens who die in that country is subject to and regulated by the local law. Upon the death of a citizen of the United States, if there is no legal representative of the deceased, it is the duty of the consul, so far as the law of the place will permit, to take charge of the property left by his deceased countryman for the purpose of preserving such property from loss or waste; but it is also his duty to surrender such charge and control of the property to any legal representative of the deceased who presents himself with authority duly and legally authenticated. In such cases, however, the authority of the consul is limited to the rendering of such aid to the legal representative of the deceased in the care and preservation of the property as he may have it in his power to render consistent with the local law."
Mr. Fish, Sec. of State, to Mr. Hunt, Feb. 21, 1873, 97 MS. Dom. Let. 575. " There are other powers possessed by the consul in relation to the estates
of deceased citizens, which will be found enumerated in the acts of
The settlement of the estates of persons who die abroad and who are not citizens of the United States is a subject with which the Department of State has no official concern; and where a consular officer of the United States is employed by the parties interested and undertakes to act for them, he does so wholly in his individual capacity and not as an oflicer of the government. The Department of State, in answering requests for the names of consular officers with a view to their being employed in such settlements, does not assume any responsibility for the manner in which the business is performed, although it may, when requested to do so, make inquiries as to the progress of the matter. Any proceedings against the consul for delay or mismanagement must be taken agaiast him, if at all, in his personal and not in his official capacity, his bond holding him only for default towards his government.
Mr. J. C. B. Davis, Assist. Sec. of State, to Mr. Marvin, March 5, 1873,
98 MS. Dom. Let. 58.
“ In the case of American citizens dying abroad it is made by law the duty of the United States consul within whose jurisdiction such death occurs to take charge of the effects of the deceased, cause an inventory of such effects to be taken, and dispose of any that may be deemed perishable by sale at public auction, and the proceeds of which, together with all other property and moneys of the deceased, he is to hold subject to the demand of the legal representatives of the deceased. In case such representatives do not appear and demand the estate within a year, the consul is required to transmit the effects to the Treasury Department, there to await final distribution to the parties entitled to receive them.
“ The Department possesses no discretionary power to dispense with these requirements of the statute, and it will, therefore, be necessary for some person to administer on the estate. Upon receiving a copy of such letters of administration, duly authenticated, the Department will give the necessary instructions to the consul at Matanzas to forward the effects of the late Mr. Chadwick directly to the address of his legal representatives."
Mr. Cadwalader, Acting Sec. of State, to Mr. Chadwick, Aug. 19, 1875,
109 MS. Dom. Let. 4.30.
6. When a citizen of the United States, not a seaman, dies abroad without leaving a will, it is made the duty of a consul to take charge of any property he may leave in the consular district, and, after paying the debts of the deceased contracted there, to send the proceeds of the property at the expiration of a year to the Treasury of the United States, there to be held in trust for the legal representative. In case, however, a legal representative shall appear and demand the effects, the consul is required to deliver the property to him, after deducting the lawful fees. The statute on this subject may be found in section 1709 of the Revised Statutes of the United States."
Mr. (adwalader, Asst. Sec. of State, to Mrs. Llopkins, Mar. 27, 1876,
112 MS. Dom. Let. 136.
With reference to a statement of the American consul at Buenos Ayres that, unless the heirs of a citizen of the United States who died there presented their claims within a year from his decease, certain moneys left by him would, under the local law, escheat to the State, Mr. Evarts said: “ Considering the terms of Article IX. (of the treaty of 1853) give the consul the right to administer the property for the benefit of the heirs and creditors (only, however, in conformity with the laws of the country), it is conceived that any local law passed before or after the treaty of 1853 which should operate or be held to operate to sequester for the State the effects of American citizens dying (or murdered) there, with such unseemly haste, must be looked upon as hostile to the true animus of the provisions of Article 9 of the treaty and to the preservation of harmonious relations between the two countries." The minister of the United States at Buenos Ayres was therefore directed to present the matter to the Argentine government with all due courtesy, with a view to " such exercise of the central power of the government as will effect a much longer period of delay of final action so adverse to all good consideration."
Mr. Evarts, Sec. of State, to Mr. Osborn, No. 101, Feb. 4, 1879, MS. Inst.
Argentine Republic, XVI, 154.
In reply to a request for intervention for the recovery of the personal estate of a deceased American citizen who had died in British India, the Department of State said that it would instruct the consul-general of the United States at Calcutta to apply to the government of India for the delivery to him of the proceeds of the estate, should they consent to comply with such request; and that, to that end, a proper power of attorney should be given to “ John A. Leonard, esquire, at present consul-general at Calcutta, or his successor, or either of them,” to act in the premises, such power to be attested by the governor of the State in which the interested parties lived, under its seal, and then successively by the Department of State and the British legation.
Mr. Porter, Assist. Sec. of State, to Messrs. Ilogan, April 22, 1885, 155
MS. Dom. Let. 109.
By a decree of the Brazilian Government, No. 855, of November 8, 1851, the principle of reciprocity is adopted with regard to the administration of the estates of deceased aliens by their consular representatives. The decree, among other things, vests (article 2) in the judge of the probate court under certain circumstances, acting with the consular representative, the administration of the alien's estate; determines (article 3) in which way the estate in such cases is to be advertised and kept, subject to taxes, till the period of distribution