been expressed by Secretary Pickering in 1799.1 Secretary Marcy, in 1855, went so far as to declare that American consuls were "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.” 2

The Supreme Court of the United States in 1912 announced it to be "the universally recognized right of a consul to temporarily possess the estate of a citizen of his nation for the purpose of protecting and conserving the rights of those interested before it comes under the jurisdiction of the laws of the country for its administration." 3

The statutory law of the United States prescribing the duties of American consular officers appears to make the right of a consul to take even temporary possession of the assets of an estate, inventory the same, and perform other specified acts, dependent upon the consent of the territorial sovereign.4 The Consular

1 Communication to Mr. Smith, May 13, 1799, 11 MS. Dom. Let. 324, Moore, Dig., V, 117.

2 Communication to Mr. Aspinwall, Aug. 21, 1855, 44 MS. Dom. Let. 270, Moore, Dig., V, 118. The Secretary's statement should, however, as was suggested by the Supreme Court of the United States, in Rocca v. Thompson, 223 U. S. 317, 327, be read in the light of the existing statutory law of the United States (§ 1709, Rev. Stat.), which did not contemplate the assertion of a right of consular administration which the local law did not permit.

3 Rocca v. Thompson, 223 U. S. 317, 331. Similarly it was declared by the Court of Appeals of New York in 1914, that "the function of consuls is to preserve derelict estates. When their countrymen die in foreign lands it is their duty to step in and guard the stranded property from waste. This right belongs to them, irrespective of express statute or treaty, by virtue of their office." Matter of D'Adamo, 212 N. Y. 214, 223.

4 § 1709, Rev. Stat. provides that:

"It shall be the duty of consuls and vice-consuls, where the laws of the country permit:

First. To take possession of the personal estate left by any citizen of the United States, other than seamen belonging to any vessel, who shall die within their consulate, leaving there no legal representative, partner in trade, or trustee by him appointed to take care of his effects.

"Second. To inventory the same with the assistance of two merchants of the United States, or, for want of them, of any others at their choice. "Third. To collect the debts due the deceased in the country where he died, and pay the debts due from his estate which he shall have there contracted.

"Fourth. To sell at auction, after reasonable public notice, such part of the estate as shall be of a perishable nature, and such further part, if any, as shall be necessary for the payment of his debts, and, at the expiration of one year from his decease, the residue.

"Fifth. To transmit the balance of the estate to the Treasury of the United States, to be holden in trust for the legal claimant ; except that if at any time before such transmission the legal representative of the deceased shall appear and demand his effects in their hands they shall deliver them up, being paid their fees, and shall cease their proceedings.'

Mr. Cushing, Atty.-Gen., in the course of an opinion, Sept. 12, 1856, declared that "Sundry legislative acts of the United States, proceed on the assumption that American consuls, in foreign countries, will collect and remit the assets of deceased Americans. Their authority to do this will depend, of course, on the law of the foreign country. If permitted by that law, and so far as permitted, the consul may do it, but not otherwise, nor further, unless al

ADMINISTRATION OF ESTATES

[§ 480

pro

Regulations of the United States of 1896 announced that by the law of nations as well as by statute a consular officer was the " visional conservator of the property within his district belonging to his countrymen deceased therein." In 1903, Secretary Hay, having in mind the views of Attorney-General Cushing expressed in 1855 and 1856, respecting the statutory law, said that the power and duty to guard, collect and transmit the assets of an estate were not exclusive; and that if those powers were not conferred by treaties or by the local law or usage, it became the consul's "alternative duty to aid others upon whom those functions devolve under local law."2 This view prevails at the present time. American consular officers are instructed to exercise greatest care not to exceed powers granted by treaty or "by local statute."

It may be observed that certain conventions of the United States declare, in various form, that, so far as the laws of the contracting parties will permit, a consular officer may take temporary possession of the assets of the estate of a deceased intestate countryman, pending (as is specified in one instance) the appointment of an administrator.4

d

§ 480. Administration of Estates.

It is not believed that in the absence of agreement a consular officer is possessed of an exclusive right to administer the estate

lowed by treaty. And so it is with respect to foreign consuls in the States of the Union." 8 Ops. Attys.-Gen. 98, 100, Stowell's Cases, 568, 570. See, also, Opinion of Mr. Cushing, Atty.-Gen., June 2, 1855, 7 Ops. Attys.-Gen. 242, 274, Stowell's Cases, 511, 538.

1 § 409, wherein it was also declared that "He (a consular officer) 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. His duties are restricted 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 7 Ops. Attys.Gen. 274. It is, however, generally conceded that a consular officer may intervene by way of observing the proceedings, and that he may be present on the making of the inventory."

2 Communication to Mr. White, Chargé at London, No. 1109, Jan. 15, 1903, For. Rel. 1903, 487, Moore, Dig., V, 123.

3 Mr. Adee, Acting Secy. of State, to Mr. Sands, Minister to Guatemala, No. 6, Oct. 12, 1909, For. Rel. 1909, 346, 347.

Art. XIV, consular convention with Sweden, June 1, 1910, Charles, Treaties, 117; Art. X, treaty of friendship with Paraguay, Feb. 4, 1859, Malloy's Treaties, II, 1367. See, also, the provisions of par. 10, Art. III, consular convention with Colombia, May 4, 1850, Malloy's Treaties, I, 316; Art. VIII, treaty of friendship with Costa Rica (followed in later treaties with Honduras and Nicaragua), July 10, 1851, id., I, 344; Art. XXVII, treaty of friendship with Spain, July 3, 1902, id., II, 1709. Compare the provisions of Art. VI, treaty of friendship with Persia, Dec. 13, 1856, id., II, 1373.

of a deceased intestate countryman. In the United States the right to administer property left by a foreigner within the territory of any State of the Union is "primarily committed to State law."1 Various treaties of the United States, the interpretation of which has become the subject of frequent adjudication in American courts, have purported to confer upon consular officers certain privileges of administration.

According to Art. IX of the treaty with the Argentine Republic of July 27, 1853, a consular officer was given "the right to intervene in the possession, administration and judicial liquidation of the estate [of a deceased intestate countryman] conformably with the laws of the country, for the benefit of the creditors and legal heirs."2 In 1912, the Supreme Court of the United States declared that the treaty did not take away from the States the right of local administration provided by their laws, upon the estates of deceased citizens of a foreign country, and did not commit the same to consular officers of that country, to the exclusion of persons entitled to administer by the local laws of the State in which the foreign decedent died and left property. It was not intimated that the President with the approval of the Senate lacked the constitutional power to conclude, in behalf of the United States, a treaty conferring upon a foreign consul an exclusive right to administer. The sole question was whether such a right had in fact been conferred by the terms of the particular convention; and that was decidedly negatively.

According to Article X of the treaty of friendship with Paraguay of February 4, 1859, a consular officer, in the event of the death of an intestate countryman, "shall, so far as the laws of each country will permit, take charge of the property which the deceased may have left, for the benefit of his lawful heirs and creditors, until an executor or administrator be named by the said

1 Rocca v. Thompson, 223 U. S. 317, 329. See, also, Pagano v. Cerri, 93 Ohio S. 345, 112 N. E. 1037.

2 Malloy's Treaties, I, 23.

3 Rocca v. Thompson, 223 U. S. 317, affirming In the Matter of the Estate of Ghio, 157 Cal. 552. Compare In re Wyman, 191 Mass. 276, Stowell's Cases, 460; In re Lobrasciano's Estate, 77 N. Y. Supp. 1040, Stowell's Cases, 235; Carpigiani v. Hall, 172 Ala. 287. See, also, "Rights of Consular Officers to Letters of Administration under Treaties with Foreign Nations", by Frederic R. Coudert, Col. Law Rev., XIII, 181; Ernest Ludwig, Consular Treaty Rights, 108-115; For. Rel. 1908, 6-9, respecting consular jurisdiction under Art. IX of the treaty of July 27, 1853, over estates of American citizens dying in the Argentine Republic.

4"We cannot feel that the Court had any real doubt as to the constitutionality of a treaty granting to Consuls the right to administer upon the estates of their deceased nationals for the benefit of foreign heirs." Frederic R. Coudert, in Col. Law Rev., XIII, 181, 185.

ADMINISTRATION OF ESTATES

[§ 480 Consul-General, Consul or Vice-Consul, or his representative." In 1914, the Court of Appeals of New York expressed the opinion that the words "so far as the laws of each country will permit" must be deemed to qualify the right of a consular officer to name an executor or administrator, as well as his right of temporary custody.2

By Article XXXIX of the treaty of friendship with Peru, of July 26, 1851, it was agreed that pending the conclusion of a consular convention, in the absence of legal heirs or representatives, "the Consuls or Vice Consuls of either party shall be ex officio the executors or administrators of the citizens of their nation who may die within their consular jurisdictions, and of their countrymen dying at sea, whose property may be brought within their district." The same language was employed in Article XXXVI of the treaty with Peru of September 6, 1870, and in Article XXXIII of the treaty with the same State of August 31, 1887.5 All of these treaties have long since been terminated. It may be observed, however, that a mixed commission under the claims convention with Peru, of January 12, 1863,7 made an award against the United States by reason of the detention of the goods of a deceased Peruvian citizen from the Peruvian consul in New York in violation of the treaty of July 26, 1851.8

According to Article VI of the treaty of friendship with Persia, of December 13, 1856, it was provided that in case of the death of

1 Malloy's Treaties, II, 1367.

2 Matter of D'Adamo, 212 N. Y. 214, 230-231, where the court practically overruled the conflicting opinion of the Surrogate of New York County in In re Baglieri's Estate, 137 N. Y. Supp. 175. The Court of Appeals adverted to the fact that the Paraguayan treaty was before the Supreme Court of the United States when it decided Rocca v. Thompson, and "though not mentioned in the opinion, must have been held unavailing to establish an exclusive right in favor of the Italian consul."

3 Malloy's Treaties, II, 1400.

• Id., II, 1425.

5 Id., II, 1441. Mr. Justice Day, in Rocca v. Thompson, 223 U. S. 317, 332, adverted to Art. XXXIII of the treaty with Peru of Aug. 31, 1887, as an instance where it had been the purpose of the United States to commit the administration of estates of citizens of one country, dying in another, exclusively to a consular officer.

Malloy's Treaties, II, 1388, note a, 1414, note a, and 1431, note a. " Id., II, 1408.

7

8 Moore, Arbitrations, 4390-4392. See, in this connection, the interesting provisions of Art. IX of agreement (accord) concluded by Bolivia, Ecuador, Peru and Venezuela, July 18, 1911, in relation to the exercise of consular rights in the territories of the contracting parties. Brit. and For. State Pap., CVII, Part 1, p. 603.

See certain Articles of the Brazilian decree No. 855, of Nov. 8, 1851, Brit. and For. State Pap., XCII, 424; also exchange of notes between the Governments of Brazil and Germany, 1897-1898, with respect to the application of the provisions of the decree, id., 422-424.

a citizen or subject of either of the contracting parties within the territories of the other, the "effects" should be delivered up to the family or business partners of the decedent, and in the absence thereof, "to the consul or agent of the nation of which the deceased was a subject or citizen, so that he may dispose of them in accordance with the laws of his country." In the Consular Regulations of the United States of 1896, it was stated that American consuls in Persia "may administer upon the property of their deceased countrymen." 2

1

In a treaty with Salvador of December 6, 1870, which was abrogated on notice given by that country May 30, 1893, broadest privileges were conferred upon consular officers enabling them to perform the functions common to an administrator. Neither the Persian nor Salvadorean treaty appeared to make the enjoyment of the right conferred upon a consul dependent upon the sanction of the local law.

According to Article XIV of the consular convention with Sweden of June 1, 1910, the consular officer or his representative "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 property left by the deceased for the benefit of his lawful heirs and creditors, and, moreover, have the right to be appointed as administrator of such estate." The Supreme Court of Minnesota in 1912,5 and the Court of Appeals of New York in 1914,6 were of opinion that the clause "so far as the laws of each country will permit" — served to qualify the entire sentence in which they were contained, and

4

1 Malloy's Treaties, II, 1373.

2 § 91, Moore, Dig., V, 117.

3 Par. 10, Art. XXXIII, Malloy's Treaties, II, 1563.

4 Charles' Treaties, 117. See In re Holmberg's Estate, 193 Fed. 260, where it was held that this Article brought a consular officer of Sweden within the tenor of Rev. Stat. § 4544, providing that when a seaman died intestate, and his assets did not exceed $300, they should be paid into a specified court, and by it delivered to any persons proving themselves entitled to take out letters of administration, even though no letters were taken out. This convention was to remain in force ten years from the date of the exchange of ratifications which took place March 18, 1911, and thereafter from year to year, unless within a specified time, either party should give notice of its intention not to renew it.

Austro-Hungarian Consul v. Westphal, 120 Minn. 122.

6 Matter of D'Adamo, 212 N. Y. 214. Such was also the view of the Supreme Court of California in 1915, in In re Servas' Estate, 146 Pac. 651.

According to a Circular to American Consular Officers of March 31, 1902, pursuant to an Executive Order of the same date, acceptance by a consular officer of appointment from a foreign State in any fiduciary capacity, as administrator, guardian, etc., for the settlement or conservation of estates of deceased persons or of their heirs or other persons under legal disabilities is forbidden, unless previously authorized by the Secretary of State.