In re the Estate of Logiorato

Thomas, S'. — The decedent was at the time of his death a resident of this country. He died intestate and left assets in this county in a small amount. He was a citizen and subject of the kingdom of Italy, and all of his next of kin are residents of Italy. He left no next of kin residing in the State of New York, and it is alleged in the petition that there are no creditors. The petitioner is the consul-general of the kingdom of Italy. The public administrator, though duly cited, makes default. The petitioner asserts a right to administration without giving any security, and in preference to the public administrator, and bases his claim on the facts as to treaty provisions in the treaties between the Hnited States and Italy, recited in the opinion of the learned surrogate of Westchester county in the recent case of Matter of Eattorini, 33 Misc. Rep. 18, and on the rule ásserted in that decision. The application will be granted on the ground that no relative, or guardian of a minor relative, and no creditor or public administrator will consent to become administrator, and the petitioner is a legally competent person to act as such (Code Civ. Pro., § 2660), but I am unwilling to base my conclusion on the reasoning of the case cited, or to adopt it as a precedent. I agree that a solemn treaty of the Hnited States with Italy is of binding force, and that it must control all courts, even to the extent of ousting them of jurisdiction or of changing the rules of their procedure, but in order to accomplish this result their meaning and purpose must be clear and explicit. Conceding that, under the “ most favored nation ” clause in the provision of the treaty with Italy relating to the rights, prerogatives, immunities and privileges of consuls-general, the stipulation contained in the treaty of July 27, 1853, with the Argentine Republic, becomes a part of the treaty with Italy, I do not find in that stipulation any justification for the conclusion sought. It is in the following words: “ Article 9. If any citizen of the two contracting parties shall die without will or testament in any of the ter [134] ritories of the other, the consul-general or consul of the nation to which the deceased belonged, or the representative of such consul-general or consul in his absence, shall have the right to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs.” It will be observed that the right assured to the consul-general is to “ intervene,” and that this intervention is to be “ conform-ably with the laws of the country.” To intervene is to “ come between” (Webster’s Diet.), and the right to intervene in a judicial proceeding is a right to be heard with others who may assert demands or defenses. It is not a right tp take possession of the entire corpus of a fund which is the subject of the proceeding. A right to intervene “ conformably with the laws ” of the State of New York is something different from a right to set aside the laws of the State and take from a person who, by those laws, is the officer intrusted with the administration of estates of persons domiciled here, and who leave no next of kin within the jurisdiction, the right and duty of administering their assets. And when the laws of the State require an administrator to give a bond to be measured by the value of assets, nothing in the treaty provisions grants to the consul an immunity from this requirement to be obtained merely by asserting, in substance, that he has no knowledge of the existence of any debts. The eminent text-writers cited in the opinion of the learned surrogate do not intimate that the courts of civilized States, acting under general laws framed for the protection of foreigners equally with their own citizens, must grant administration, contrary to the terms of those laws, to consuls, under any circumstances whatever. Thus, in Woolsey on International Law (p. 154) ? the learned writer, in enumerating the dirties of consuls, includes the power “ of administering on the personal property left within their consular districts by deceased persons, when no legal representative is at hand, and [135] when law or treaty permits, and thus of representing them, it may be, before the courts of the district.” Consuls may accept administration, but no right to override local law is suggested. See, also, Wheat. Elements Inti. Law (3d ed.), 167, 168. A similar question was passed upon by the Supreme Court of Louisiana in 1854, in Succession of Charles Thompson, 9 La. Ann. 96. In that case administration was granted to the official curator, under the laws of Louisiana, of a decedent domiciled in the State and leaving property within the jurisdiction of the court. The petitioner was the vice-consul of the kingdom of Sweden and Norway, who represented that the deceased was a Swede by birth, and at the time of his death was a subject of the King of Sweden. On this ground he claimed the right, in his capacity of consul, to take the succession out of the hands of the defendant, who was the duly appointed administrator. This right, he alleged, he was entitled to exercise under the laws of nations, the laws of the United States, and by virtue of treaties entered into between the United States and the kingdoms of Sweden and Norway. The court said: “ The right claimed is incompatible with the sovereignty of the State, whose jurisdiction extends over the property of foreigners as well as citizens found within its limits. The disposition of the estates of foreigners has been made the subject of special legislation, and no treaty or law of the United States exists which, as the paramount law, confers any such right as is claimed by the petitioner, nor are we aware of any principle of the law of nations which would entitle the petitioner to call in question the authority of our laws on that subject.” In Aspinwall v. The Queen’s Proctor, 2 Curt. 241, 244, an application was made in the English Prerogative Court of Canterbury by the American consul to take administration of the goods of an American subject domiciled in America, who died in itinere, leaving personal property in the jurisdiction of the court. The application was denied in the opinion of Sir Herbert Tenner [136] on what appear to me to be satisfactory grounds. Among other things he stated that the Crown was the party to see that the property of any person dying within its dominions gets into proper hands. My conclusion, therefore, is that the petitioner may have letters on giving the usual security, but that this is done pursuant to our local law, and because the public administrator has refused to act. Letters granted.