Melzner v. Trucano

MR. JUSTICE SANNER delivered the opinion of the court. On October 21, 1912, the respondent, C. A. Trucano, was appointed administrator of the estate of August Infelise, who died intestate in Jefferson county. Thereafter and on March 16, 1914, the appellant, Melzner, filed his petition, praying revocation of respondent’s letters and the issuance of letters of administration to himself, basing his petition upon an alleged nomination by the mother and sole heir of the deceased, she residing in Italy. To this the respondent answered, denying the nomination of the appellant by the mother of the deceased, and pleading affirmatively: (1) That on October 29, 1913, the appellant filed a similar petition which, being resisted by the respondent upon the grounds now urged, was after hearing dismissed by the court for want of sufficient evidence to show appellant’s nomination, and, no appeal having been taken from such order, the matters and things sought to be presented by the present petition are res adjudicata; and (2) that Infelise was, at the time of his death, a subject of the kingdom of Italy, whereof the appellant is the consular agent for Montana, entitled by treaty between the United States and Italy to have, and directed by the Italian consul-general to procure, letters of administration upon said estate. To this Melzner demurred, and the court, by a single order made and entered on the 15th day of. May, 1914, overruled said demurrer and dismissed the petition “on the ground that the applicant has no authority to apply for letters because the nominating person has no right, under the showing — 23 — made and under the law, to ask for the revocation of the letters issued to C. A. Trucano. ’ ’ From that order this appeal is taken. 1. It is supposed by the appellant that the order in question [1] can be justified, if at all, only upon the theory that the district court correctly held the mother’s nomination to be ineffective because of her nonresidence. If such is the view intended to be expressed by the order — which we doubt — it was certainly erroneous. (Rev. Codes, sec. 7447; In re Craigie’s Estate, 24 Mont. 37, 60 Pac. 495; In re Roller’s Estate, 40 Mont. 137, 105 Pac. 549.) But this would not absolve us from the duty of affirming the order if it be warranted by any considera[2] tion appearing upon the face of the recoi’d. (Menard v. Montana Cent. Ry. Co., 22 Mont. 340, 56 Pac. 592.) And such consideration does appear. The statute above referred to, under which the nominee of a surviving mother may be entitled to letters and to the revocation of prior letters, is not absolute and available at all times, under all conditions. The pleading in such, as in all other eases, must show prima facie that the applicant is entitled to the relief sought. In the present instance [3] it is alleged that the mother did, on January 21, 1914, “duly make, execute and deliver an instrument in writing, requesting the petitioner to obtain revocation of the letters of administration heretofore issued to C. A. Trucano, and further requesting * * * that said A. B. Melzner be appointed administrator,” but this is merely the opinion of Melzner that a paper, in effect as stated, was properly executed by the mother. Section 7447 is to be read in connection with the other Code sections upon the' same subject, including section 7446. Under the latter section the request must be filed in the court. Nowhere is it made to appear that this was done, and no copy of the request is attached to the petition; hence it cannot, in strictness, be said that any request was before the court. Assuming, however, that the allegation above quoted was sufficient prima facie, the petitioner had and could claim no right in the premises other than as the nominee of the mother. Now, save as to [4] a surviving husband or wife — -whose right to administer or — 24 — to name the administrator is absolute (Rev. Codes, sec. 7432; In re Blackburn’s Estate, 48 Mont. 179, 137 Pac. 381) — -a request by any of the other persons named in section 7447 is addressed to the sound discretion of the court, and a refusal to heed such request cannot be reversed unless a clear abuse of such discretion is shown (Richardson’s Estate, 120 Cal. 344, 52 Pac. 832; Estate of Morgan, 53 Cal. 243; Healy’s Estate, 122 Cal. 162, 54 Pac. 736; [5] Harrison’s Estate, 135 Cal. 7, 66 Pac. 846). Even as to the surviving husband or wife the benefit of section 7447 may be waived (Rev. Codes, see. 6181; In re Blackburn’s Estate, supra), not only by express assent, but also by refusal or failure to claim, or by unreasonable delay in claiming, the advantage given by that section. (Estate of Keane, 56 Cal. 407; McColgan v. Kenny, 68 Md. 258, 11 Atl. 819; Pollard v. Mohler, 55 Md. 284, 287; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828; Rodes v. Boyers, 106 Tenn. 434, 61 S. W. 776; Edwards v. Bruce, 8 Md. 387, 392; Sprague’s Estate, 125 Mich. 357, 84 N. W. 293.) The petition in question was filed on March [6] 16, 1914, nearly seventeen months after the appointment of Trucano, and there is nothing on its face to show when the mother became apprised of this event. As, however, no question is raised touching Trucano’s appointment in the first instance, it must be presumed that due notice was given before it was made, and the effect of this is to impute constructive knowledge to the mother that Trucano would be appointed in the absence of timely objection. Without any showing of want of actual notice, or without any averments excusatory of her delay, and after such a lapse of time during which the administrator previously appointed was permitted to act without criticism or complaint, the court cannot be put in error for refusing to entertain the petition to revoke; and until Trucano’s letters were revoked, the appellant could not be appointed. (Estate of Keane, supra; Bedell’s Estate, 97 Cal. 339, 32 Pac. 323; Jewett v. Turner, 172 Mass. 496, 52 N. E. 1082.) Nor is this situation altered because the answer alleges, as the basis for a plea of res adjudñcata, that the appellant did, on — 25 — October 29, 1913, file a similar petition to the one now before us. This circumstance cannot be considered at all in determining the sufficiency of the showing made by the petition; but, if it could, it was still possible for the court to make the order in question, because of the first delay of twelve months and the apparent acquiescence for five months after the dismissal of the first petition. 2. The appellant assigns error in the overruling of his demurrer to the respondent’s affirmative defenses. The [7, 8] importanee of this to the case as it now stands is not dear; for, if the proceedings were correctly dismissed for insufficiency in the showing made by the petition, any error committed in. ruling upon the demurrer was harmless. To set the matter at rest, however, and in due respect to the elaborate arguments of counsel upon the subject, we express the view that so far as the defenses based upon the treaty with Italy are concerned, the ruling was not erroneous. Article XVII of that treaty (20 Stat. 732) provides: “The respective consuls-general, consuls, vice-consuls and consular agents, as likewise the consular chancellors, secretaries, clerks or attaches, shall enjoy in both countries, all the rights, prerogatives, immunities and privileges which are or may hereafter be granted to the officers of the same grade, of the most favored nation.” Under this “most favored nation” clause, reliance is had upon the provisions of Article X of the treaty between the United States and Paraguay (12 Stat. 1096) and of Article XIV of the treaty between the United States and Sweden (37 Stat. 1487). The stipulation in the treaty with Sweden is that: “In the event of any citizens of either of the two contracting parties dying without will or testament, in the territory of the other contracting party, the consul-general, consul, vice-consul general, or vice-consul of the nation to which the deceased may belong, or, in his absence, the representative of such consul-general, consul, vice-consul general, or vice-consul, shall, so far as the laws of each country will permit and pending the appointment of an administrator and until letters of administration have been granted, take charge of the — 26 — property left by tbe deceased for tbe benefit of Ms lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate.” These provisions are the supreme law of the land, binding upon us, anything in the Constitution or laws of this state to the contrary notwithstanding (U. S. Const., Art. VI); and, under the liberal construction to which treaties are entitled (Shanks v. Dupont, 3 Pet. 242, 7 L. Ed. 666), upon the weight of decided eases (Scutella’s Estate, 145 App. Div. 156, 129 N. Y. Supp. 20; McEvoy v. Wyman (In Re Wyman), 191 Mass. 276, 114 Am. St. Rep. 601, 77 N. E. 379; Carpigiani v. Hall, 172 Ala. 287, Ann. Cas. 1913D, 651, 55 South. 248; Lobrasciano’s Estate, 38 Misc. Rep. 415, 77 N. Y. Supp. 1040), and in accordance with the uniform practice of the executive department of the government, where the primary duty of interpreting treaties resides (5 Moore, Int. Law Digest, pp. 117-125), we think it perfectly clear that the Italian consular agent for Montana, in the absence and under the authority of the Italian consul-general, is entitled, as against the nominee of a nonresident heir, to admimster the estate of any Italian subject dying intestate within Ms jurisdiction. The appellant contends, however, that even on this theory the respondent could not be appointed, because it is not averred that the Italian consul-general is absent from the United States, or from the district over which he presides, which district includes eleven states of this Union, extending from South Dakota to Arizona. The answer avers that the Italian consul-general resides in Denver, Colorado; that appellant is the Italian consular agent for the state of Montana, appointed to act and acting for the consul-general in the absence of the latter from this state, and that he has been specifically 'directed by the consul-general to apply for these letters of administration. Mamfestly, the treaty does not contemplate that the consul-general shall be personally present in all the states of his district at the same moment of time, but that, as to all matters within his powers, he may act through consular agents when he is not personally present at the place where his consular activities are for the moment — 27 — required. As regards the administration of estates, the phrase “in the absence of the consul-general” obviously means his nonpresence in the state wherein the administration occurs. The order appealed from is affirmed. Affirmed. Me. Cheep Justice Beantly and Me. Justice Holloway concur.