Instructions of the head of a department must be read in light
of the statute directly bearing on the subject, and so
held that instructions of the Secretary of State to
consuls in regard to administering effects of citizens of the
United States dying in foreign lands must be read in the light of §
1709, Rev.Stat.
There is no federal probate law, but right to administer
property left by a foreigner within the jurisdiction of a state is
primarily committed to state law.
Quaere whether it is within the treaty-making power of
the national government to provide by treaty with foreign nations
for administration of property of foreigners dying within a state,
and to commit such administration to consuls of the nation to which
deceased owed allegiance.
"Intervene in the possession and administration of the deceased"
as the expression is used in the Argentine Treaty of 1853, is to be
construed as permitting the consul of either contracting nation to
temporarily possess the estate of his national for the purpose of
protecting it, before it comes under the jurisdiction of the laws
of the country, or to protect the interests of his national in an
administration already instituted otherwise than by him.
Under the Argentine Treaty of 1853, a consul has not the right
to the original administration of the estate of a deceased national
to the exclusion of one authorized by local law to administer the
estate.
While treaties are to be liberally construed, they are to be
read in the light of conditions existing when entered into with a
view to effecting the objects of the contracting states.
The law of the Argentine Republic, as brought to the attention
of this Court, does not give to consuls of foreign countries the
right to administer the estates of deceased nationals, but only to
appoint an executor, which appointment is to be communicated to the
testamentary judge.
Quaere whether the most favored nation clause included
in the Treaty with Italy of 1878 carries the provisions of the
Argentine Treaty of
Page 223 U. S. 318
1853 in regard to the administration by consuls of the estate of
deceased nationals.
In California, the public administrator is entitled to
administer the estate of an Italian citizen dying and leaving an
estate in California, in preference to the Consul-General of the
Kingdom of Italy, and so
held after construing the
provision of the Treaty of 1878 with Italy, and that of 1853 with
the Argentine Republic.
157 Cal. 552 affirmed.
The facts, which involve the construction of the provisions of
the Treaty of 1878 with Italy and that of 1853 with the Argentine
Republic in regard to the right of consuls to administer estates of
their respective natives dying in the United States, are stated in
the opinion.
Page 223 U. S. 324
MR. JUSTICE DAY delivered the opinion of the Court.
This is a writ of error to the Supreme Court of the State of
California to review a judgment in which that court held that the
public administrator was entitled to letters of administration upon
the estate of an Italian citizen dying and leaving an estate in
California, in preference to the Consul General of the Kingdom of
Italy.
The facts are briefly these: Giuseppe Ghio, a subject of the
Kingdom of Italy, died intestate on the 27th day of April, 1908, in
San Joaquin County, California, leaving a personal estate. Ghio
resided in the State of California. His widow and heirs at law,
being minor children, resided in Italy. Plaintiff in error,
Salvatore L. Rocca, was the Consul General of the Kingdom of Italy
for California, Nevada, Washington, and Alaska territory.
Upon the death of Ghio, Consul General Rocca made application to
the superior court of California for letters of administration upon
Ghio's estate. The defendant in error, Thompson, as public
administrator, made application for administration upon the same
estate under the laws of California. The superior court held that
the
Page 223 U. S. 325
public administrator was entitled to administer the estate. The
same view was taken in the Supreme Court of California. 157 Cal.
552. From the latter decision, a writ of error was granted, which
brings the case here.
The Consul General bases his claim to administer the estate upon
certain provisions of the Treaty of May 8, 1878, between Italy and
the United States. Arts. XVI and XVII read as follows:
"Article XVI. In case of the death of a citizen of the United
States in Italy, or of an Italian citizen in the United States, who
has no known heir or testamentary executor designated by him, the
competent local authorities shall give notice of the fact to the
consuls of consular agents of the nation to which the deceased
belongs, to the end that information may be at once transmitted to
the parties interested."
"Article XVII. 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."
20 Stat. p. 732.
While Article XVI only requires notice to the Italian consul or
consular agent of the death of an Italian citizen in the United
States, Article XVII gives to consuls and similar officers of the
Italian nation the rights, prerogatives, immunities, and privileges
which are or may be hereafter granted to an officer of the same
grade of the most favored nation. It is the contention of the
plaintiff in error that this favored-nation clause in the Italian
treaty gives him the right to administer estates of Italian
citizens dying in this country because of the privilege conferred
upon consuls of the Argentine Republic by the treaty between that
country and the United States of July 278 1853, Art. IX of which
provides:
Page 223 U. S. 326
"If any citizen of either of the two contracting parties shall
die without will or testament, in any of the territories 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."
10 Stat. p. 1009.
From this statement of the case it is apparent that the question
at the foundation of the determination of the rights of the parties
is found in the proper interpretation of the clause of the
Argentine treaty just quoted. The question is: does that treaty
give to Consuls of the Argentine Republic the right to administer
the estate of citizens of that Republic, dying in the United
States, and a like privilege to Consuls of the United States as to
citizens of this country, dying in the Argentine Republic? The
question has been the subject of considerable litigation, and has
been diversely determined in the courts of this country which have
had it under consideration.
The surrogate of Westchester County, New York, in two cases,
In re Fattosini's Estate, 67 N.Y.S. 1119, and
In re
Lobrasciano's Estate, 77 N.Y.S. 1040, has held that the Treaty
of Italy of 1878, in the most favored nation clause, carried the
benefit of the Argentine treaty to the consuls of Italy, and that
the Argentine conferred the right of administration upon the
consuls of that country. In
In re Wyman, 191 Mass. 276,
the supreme judicial court of that state, as to Russian consuls,
under the most favored nation clause in the Russian treaty,
followed the surrogate courts of Westchester County, observing that
the cases were well considered and covered the entire ground. The
Supreme Court of Alabama, in
Carpigiani v. Hall, 55 So.
248,
Page 223 U. S. 327
followed the decisions in New York and Massachusetts just
referred to, and in
In re Scutella's Estate, 129 N.Y.Supp.
20, the appellate division of the Supreme Court of New York pursued
the same course.
A contrary view was expressed by the Surrogate Court of New York
County in
In re Logiorato's Estate, 69 N.Y.S. 507, and by
the Supreme Court of Louisiana in
Lanfear v. Ritchie, 9
La.Ann. 96.
An examination of the cases which have held in favor of the
right of a Consul General to administer the estate, to the
exclusion of the public administrator, makes it apparent that the
Lobrasciano case, which is the fullest upon the subject,
is the one that has been followed without independent reasoning
upon the part of the courts adopting it.
In that case, the right of a consul to administer the estates of
deceased citizens of his country is based not only upon the
interpretation of the treaties involved, but as well upon the law
of nations giving the right to consuls to administer such estates.
In the opinion, some citations are made from early instructions of
Secretaries of State emphasizing the right and duty of consuls to
administer upon the effects of citizens of the United States dying
in foreign lands.
But these instructions must be read in the light of the statute
of the United States, § 1709, Rev.Stat.,
* which,
Page 223 U. S. 328
while it recognizes the right of consuls and vice consuls to
take possession of the personal estate left by any citizen of the
United States who shall die within their consulates, leaving there
no legal representative, partner, or trustee, to inventory the
same, and to collect debts, provides in the fifth paragraph of the
section that, if at any time before the transmission to the United
States Treasury of the balance of the estate, the legal
representative appears and demands his effects in the hands of the
consul, they shall be delivered up, and he shall cease further
proceedings, and the duties imposed are where "the laws of the
country permit."
The consular regulations of the United States tersely express
the duty of a consul as to the conservation of the property of
deceased countrymen, and declare that he has no right, as consular
officer, apart from the provisions of treaty, local law, or usage,
to administer the estate, or, in that character, to aid any other
person in so administering it, without judicial authorization.
Section 409 of the consular Regulations is as follows:
"A consular officer is, by the law of nations and by statute,
the provisional conservator of the property within his district
belonging to his countrymen deceased therein. He has no right, as a
consular officer, apart from the provisions of treaty, local law,
or usage, to administer on the estate,
Page 223 U. S. 329
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 estate. 7 Op.Att.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."
In Moore's International Law Digest, Vol. 5, p. 123, a letter of
Mr. Hay, Secretary of State, under date of February 3, 1900, is
quoted to the effect that the right of a United States consular
officer to intervene by way of observing proceedings in relation to
the property of deceased Americans leaving no representatives in
foreign countries is not understood to involve any interference
with the functions of a public administrator.
In this country, the right to administer property left by a
foreigner within the jurisdiction of a state is primarily committed
to state law. It seems to be so regulated in the State of
California by giving the administration of such property to the
public administrator. There is, of course, no federal law of
probate or of the administration of estates, and, assuming for this
purpose that it is within the power of the national government to
provide by treaty for the administration of property of foreigners
dying within the jurisdiction of the states, and to commit such
administration to the consular officers of the nations to which the
deceased owed allegiance, we will proceed to examine the treaties
in question with a view to determining whether such a right has
been given in the present instance.
This determination depends primarily upon the construction of §
9 of the Argentine Treaty of 1853, giving to the consular officers
of the respective countries, as to citizens dying intestate, the
right
"to intervene in the
Page 223 U. S. 330
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, whether, in the possession, the
administration, or the judicial liquidation of the estate, the sole
right conferred is that of intervention, and that conformably with
the laws of the country . Does this mean the right to administer
the property of such decedent, and to supersede the local laws as
to the administration of such estate? The right to intervene at
once suggests the privilege to enter into a proceeding already
begun, rather than the right to take and administer the
property.
Literally, to intervene means, as the derivation of the word
indicates [
inter, between, and
venire, come], to
come between. Such is the primary definition of the word given in
Webster's Dictionary and in the Century Dictionary. When the term
is used in reference to legal proceedings, it covers the right of
one to interpose in, or become a party to, a proceeding already
instituted, as a creditor may intervene in a foreclosure suit to
enforce a lien upon property or some right in connection therewith;
a stockholder may sometimes intervene in a suit brought by a
corporation; the government is sometimes allowed to intervene in
suits between private parties to protect a public interest, and
whether we look to the English ecclesiastical law, the civil law,
from which the Argentine law is derived, or the common law, the
meaning is the same.
"In English ecclesiastical law. -- The proceeding of a third
person, who, not being originally a party to the suit or
proceeding, but claiming an interest in the subject matter in
dispute, in order the better to protect such interest, interposes
his claim. 2 Chitty, Pr. 492; 3 Chitty, Commer.Law, 633; Dalrymple
v. Dalrymple, 2 Hagg.Const. 137; 3 Phillim.Ecc.Law 586."
"In the civil law. -- The act by which a third party demands to
be received as a party in a suit pending between other persons.
"
Page 223 U. S. 331
"The intervention is made either for the purpose of being joined
to the plaintiff, and to claim the same thing he does, or some
other thing connected with it, or to join the defendant, and with
him to oppose the claim of the plaintiff, which it is his interest
to defeat."
Poth.Proc.Civile, pt. 1, c. 2, § 7, no. 3.
"In practice. -- A proceeding in a suit or action by which a
third person is permitted by the court to make himself a party,
either joining the plaintiff in claiming what is sought by the
complaint or uniting with the defendant in resisting the claims of
the plaintiff or demanding something adversely to both of them.
Logan v. Greenlaw, 12 F. 16;
Fischer v. Hanna, 8
Colo. App. 471, 47 P. 303;
Gale v. Frazier, 4 Dak.196, 30
N.W. 138;
Reay v. Butler 7 P. 671."
Black's Law Dict. p. 651.
Emphasis is laid upon the right under the Argentine treaty to
intervene in possession, as well as administration and judicial
liquidation, but this term can only have reference to the
universally recognized right of a consul to temporarily possess the
estate of citizens 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. The
right to intervene in administration and judicial liquidation is
for the same general purpose, and presupposes an administration or
judicial liquidation instituted otherwise than by the consul, who
is authorized to intervene.
So, looking at the terms of the treaty, we cannot perceive an
intention to give the original administration of an estate to the
Consul General to the exclusion of one authorized by local law to
administer the estate.
But it is urged that treaties are to be liberally construed.
Like other contracts, they are to be read in the light of the
conditions and circumstances existing at the time they were entered
into, with a view to effecting the objects
Page 223 U. S. 332
and purposes of the states thereby contracting.
In re
Ross, 140 U. S. 453,
140 U. S.
475.
It is further to be observed that treaties are the subject of
careful consideration before they are entered into, and are drawn
by persons competent to express their meaning, and to choose apt
words in which to embody the purposes of the high contracting
parties. Had it been the intention to commit the administration of
estates of citizens of one country, dying in another, exclusively
to the consul of the foreign nation, it would have been very easy
to have declared that purpose in unmistakable terms. For instance,
where that was the purpose, as in the treaty made with Peru in
1887, it was declared in Art. 33 as follows:
"Until the conclusion of a consular convention, which the high
contracting parties agree to form as soon as may be mutually
convenient, it is stipulated that, in the absence of the 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."
And in the convention between the United States and Sweden,
proclaimed March 20, 1911, it is provided:
"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 property left
by the deceased, for the benefit of his lawful heirs and
Page 223 U. S. 333
creditors, and, moreover, have the right to be appointed as
administrator of such estate."
The Argentine treaty was made in 1853, and the Italian treaty in
1878. In 1894, correspondence between Baron Fava, the then Italian
Ambassador, and Mr. Uhl, Acting Secretary of State, shows that the
Italian Ambassador proposed that Italian consuls in the United
States be authorized, as were the American consuls in Italy, to
settle the estates of deceased countrymen. It was the view of the
Department of State of the United States, then expressed, that, as
the administration of estates in the United States was under the
control of the respective states, the proposed international
agreement should not be made. The Acting Secretary of State
adverted to the practical difficulties of giving such
administration to consular officers, often remotely located from
the place where the estate was situated.
See 5 Moore's
International Law Digest, p. 122.
The learned counsel for the plaintiff in error, in his
supplemental brief, has referred to a statement of the law of the
Argentine Confederation of 1865, English translation published in
Vol. 58, British and Foreign State Papers, p. 455, in which it is
said that a foreigner dying intestate, without leaving a wife or
lawful heirs in the Argentine Republic, or where he dies leaving a
will, the heirs being foreigners, absent from the country, and the
executor being also absent, the consul of the deceased foreigner's
nation is given the right to intervene in the arrangement of his
affairs. In Arts. III and IV, it is declared:
"III. Consular intervention shall be confined to -- 1st. sealing
up the goods, furniture, and papers of the deceased, after giving
due notice to the local authorities, provided always that the death
has taken place within the consular district; 2nd. appointing
executors."
"IV. The consuls shall at once communicate to the testamentary
judge the appointment of such executors. "
Page 223 U. S. 334
It is contended that the right secured to a foreign consul to
appoint an executor under this Act of 1865 is evidence of the fact
that the Argentine Republic is carrying out the treaty in the sense
contended for by the plaintiff in error; but in this law certainly
no right of administration is given to the consul of a foreign
country. It is true, he may appoint an executor, which appointment
it is provided is to be at once communicated to the testamentary
judge.
In Art. VIII, the same law provides that executors shall perform
their charge in accordance with the laws of the country. Art. XIII
declares that the rights granted by the law shall be only in favor
of the nations which cede equal privileges to Argentine consuls and
citizens.
Our conclusion, then, is that, if it should be conceded for this
purpose that the most favored nation clause in the Italian treaty
carries the provisions of the Argentine treaty to the consuls of
the Italian government in the respect contended for (a question
unnecessary to decide in this case), yet there was no purpose in
the Argentine treaty to 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 to commit the same to
the consuls of such foreign nation to the exclusion of those
entitled to administer as provided by the local laws of the state
within which such foreigner resides and leaves property at the time
of decease.
We find no error in the judgment of the Supreme Court of the
State of California, and the same is
Affirmed.
*
"SEC. 1709. 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."