55 So. 248 | Ala. | 1911
Francesco Santangelo, a citizen of Italy, died intestate on or about March 30, 1910, in Jefferson county, Ala., where he was then residing, leaving personal property valued at about $50, and contingently a right of action in his personal representative against a corporation for the injuries that caused his death. On April 15, 1910, a petition was filed in the probate court by E. D. Hall and Virga Giuseppe, as friend and relative of the deceased, which, in addition to the usual jurisdictional averments, recited that the names of the heirs and distributees of the decedent’s estate, so far as known, are “Virga Giuseppe, cousin and nearest relative in America.” On the same day — April 15th — letters of administration were issued to these two petitioners jointly; they having qualified by filing the required bond. On April 19, 1910, Frank Carpigiani filed his petition in the probate court, stating under oath that he is the consular agent of Italy at Birmingham, Ala., and as such empowered to look after the estates of Italian subjects who die intestate in Jefferson countv; that Francesco Santangelo was a subject of
The fact that the intestate’s father was a nonresident did not disqualify him for the office of administrator, if he chose to undertake it. — Fulgham v. Fulgham, 119 Ala. 403, 24 South. 851.
2. The rights and privileges of consuls rest on the general law of nations, as well as on treaty stipulations. — 2 Opinions of Attys. Gen. U. S. 378. In his treatise on Public International Law (page 356), Mr. Taylor states that one of the duties attaching to the consular office is “to see that the laws of the state in which he officiates are properly administered when the rights of such (his) fellow citizens are involved.”
The duty, and by comity the authority, of a consul to receive and care for the personal estate of citizens of his own country who may die within his consulate, and to protect the estate from spoliation, is prescribed and recognized by all civilized nations. — 7 Moore’s Digest International Law, § 722, p. 117; The Bello Corrunes, 6 Wheat. 152, 5 L. Ed. 229; Wheat. Int. Law (2d Ed.) 151; Woolsey’s Int. Law, § 96. Of the general propriety of such a practice there can be no possible doubt, and we are of the opinion that the appellant’s intervention on the grounds set forth in his petition was no more than his official duty prescribed, and was authorized by the. law and comity of nations.
3. The treaty of 1878 between Italy and the United States, of which, we take judicial notice, contains the following provisions:
Article 9. “Consuls general, consuls, vice consuls and consular agents may have recourse to the authorities of the respective countries within their district, whether federal or local, judicial or executive, for the purpose of complaining of any infraction of the treaties or conventions existing between the United States and Italy as also in order to- defend the rights and interests of their countrymen. If the complaint should not be satisfactorily redressed, the consular officers aforesaid in the absence of a diplomatic agent of their country, may apply directly to the government of the country where they reside.”
Article 16. “In the 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 consuls or 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 17. “The respective consuls general, vice consuls and consular agents, as likewise the consular chancellors, secretaries, clerks'or attaches, shall enjoy in both countries all the rights, prerogatives, immuni
Under the “most favored nation” clause in the above treaty, appellant makes reference to article 9 of the treaty of 1853 between the Argentine Republic and the United States: “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 said 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. 1009; U. S. Treaties 1904, p. 24.
It thus results that article 17 of our treaty with Italy is to be read as if it conferred in specific terms all of the consular powers and privileges set out in article 9 of the Argentine treaty.
Article 6 of the Constitution of the United States declares : “This Constitution, and the laws of the United States which shall -be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; anything in the Constitution or laws of any state to- the contrary notwithstanding.”
The final arbiter in all matters of constitutional interpretation is, of course, the Supreme Court of the United States, and that court, by Justice Field, has said of this provision: “That the treaty power of the United States extends to all proper subjects of negotiation between our government and the governments of
Undoubtedly, the consular prerogative of intervention in and administration of the estates of deceased foreign residents, as granted in article 9 of the Argentine treaty, is international in its character, and directly within the purview of the treaty power of the federal government, and is therefore binding upon all the courts of this state. We therefore hold that the Italian consul, within the area of his consular territory, is entitled by supreme law to administer upon the estate of any Italian subject who there dies intestate, conformably, as to his general powers, obligations, and mode of procedure, with the'statutes of the state.
These conclusions are fully and directly supported by the decisions of New York and Massachusetts.— Estate of Tartaglio, 12 Misc. Rep. 245, 33 N. Y. Supp.
The case of In re Ghio’s Estate (Rocca v. Thompson [Cal.]) 108 Pac. 516, takes an opposing view, which must he regarded as erroneous.
The decree of the probate court is reversed, and the cause remanded for further proceedings in accordance with the foregoing opinion.
Reversed and remanded.