267 F. 609 | D.D.C. | 1920
(sitting in place of Associate Justice Robb). Appellant, Edward R. Cunningham, plaintiff below, brought his action at law against the defendants, who are the principals and sureties on a consular bond, to recover the penalty of such bond, $8,-000. The defendant Rodgers, the principal on the bond, alone was served with process. Plaintiff’s declaration sounds in debt, and is in three counts. To this a demurrer was interposed by the defendant Rodgers, which was sustained by the lower court, and from the order sustaining the demurrer, and dismissing the action, the plaintiff has appealed.
The plaintiff relies for his relief upon section 1709 of the Revised Statutes (Comp. St. § 3162). This section is as follows:
“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 oi 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.”
. The first question presented is whether the plaintiff has any right of action on this bond, or whether such right is in the personal representative of the deceased alone. It is true that section 1697 of the
Under paragraph fifth of R. S. § 1709 (Comp. St. § 3162), it is provided that it is the duty of the consul “to transmit the balance of the estate to the treasury of the United States, to be hoi den in trust for the legal claimant,” etc. The legal claimant is clearly the personal representative and such has been the construction placed upon this section by 1he Treasury Department. 11 Comptroller’s Dec. 713; 12 Comptroller’s Dec. 439.
If, therefore, the consul had performed the duties which the plaintiff claims it was incumbent upon him to perform, the administrator would be the legal claimant, and lie alone would have been entitled “to receive the fund from the treasury.”
As to the disposition of the real estate, it is sufficient to say that no action of the defendant can prevent the plaintiff from establishing his just rights in the proper forum, as the land cannot have been dissipated by the defendant.
In no aspect of the case, therefore, can the plaintiff maintain this action. The action of the Supreme Court of the District of Columbia in sustaining the demurrer and dismissing the suit was correct, and the judgment of said court will be affirmed, with costs.
Associate Justice BAIEEY, of the Supreme Court of the District of Columbia, sat in the place of Associate Justice ROBB, who took no part in the consideration or decision of this case.