Franciscovich v. Walton

Mr. Justice McBride delivered the opinion of the court. 1, 2. The petition of defendant for letters of administration makes no charge of maladministration against plaintiff, but is based upon the assumption that petitioner, as a representative of the Russian vice-consul, had a prior and exclusive right to receive letters of administration upon the estate of deceased. The County Court, proceeding upon the same theory, removed plaintiff and appointed defendant. Since the abrogation of the treaty with Russia in 1911, we are unaware of any arrangement with that power whereby its subjects or consuls are entitled to invoke the most-favored nation clause in their intercourse with the United States. The theory of defendant, originally, seems to have been that a Bulgarian subject is a national of Russia; that Russia has a right under the [41] most-favored nation danse of its treaty or convention with the United States to avail itself of the treaty between the United States and Sweden (37 Stat. 1479), which gave to consular officers of that kingdom a prior right in certain instances to have themselves, or their representatives, appointed administrators of their deceased nationals sojourning in the United States. We take judicial notice of the fact that Bulgaria is an independent kingdom, and that a subject thereof is not a national of Russia. Therefore, while it may be true that, as a matter of comity, Russian consular officers have looked after the welfare of Bulgarian subjects in this country, Bulgaria not having any treaty with or consular representative here, this fact does not give Bulgaria any treaty or convention rights which are enjoyed by Russia. In fact, any right in that behalf was expressly waived by counsel upon the argument here, so that the case stands upon the same footing as though defendant had made the application upon his own initiative. 3. The appointment of plaintiff was technically irregular, because made within 30 days after the death of deceased, within which time the widow, heirs at law, and creditors of the estate had a prior right to apply. Had any qualified member of any of these classes applied it would have been the duty of the court to revoke the appointment of plaintiff and appoint the party so applying; but defendant did not show any right or qualification superior to plaintiff, and it was an abuse of the court’s discretion to revoke one irregular appointment in order to make another equally irregular. As remarked by Justice Bean, in Cusick v. Hammer, 25 Or. 473 (36 Pac. 525): [42] “When the regularity of an appointment already made is attacked, and sought to be revoked because issued to the wrong- member of a class entitled to administer, the petitioner must affirmatively show in an issuable form facts which, if true, give him the preference under the law.” The defendant’s petition disclosed the fact that he had no legal standing to contest plaintiff’s appointment. 4. While outside of the case, though suggested on the argument, it may not be improper to say that it appears that the chief asset of the estate is an unliquidated claim for damages arising out of the death of deceased, as a result of personal injuries. If these injuries arose under circumstances cognizable under the provisions of the Employers’ Liability Act, the administrator would have no right to settle the claim or even to bring an action upon it; that right being vested by law in the widow. The judgment of the Circuit Court is affirmed. Affirmed. Mr. Chief Justice Moore, Mr. Justice Burnett and Mr. Justice Benson concur.