152 Misc. 237 | N.Y. Sur. Ct. | 1934
The Royal Vice Consul of Italy, at New York, acting for two sisters of the decedent, who were residents and subjects of Italy, obtained an order on default directing the administratrix to account. Application is now made to open the default, to vacate the order and to dismiss the petition upon the ground that under the provisions of section 259 of the Surrogate’s Court Act, the consul is not a “ person interested in the estate or fund ” of the decedent, and, consequently, is not authorized to institute the proceeding.
The decedent was a naturalized citizen of the United States and died on October 2, 1918, in France while serving in its armed forces. In a similar situation Surrogate Slater held that the consul could not institute a compulsory accounting proceeding. (Matter of Tripodi, 137 Misc. 738.) In that case the learned surrogate was of the opinion that “ the right to intervene in the possession, administration and judicial liquidation of an estate, or guard, or step in, receive payment — right to represent — applies only to those cases coming under the treaty provision, i. e., property of natives of Italy residing in the United States — friendly aliens.” I am unable to concur in this view because it seems to me to overlook and discount the force and effect of article XXV of the treaty of 1923 with Germany providing as follows: “A consular officer of either high contracting party may in behalf of his non-resident countrymen receipt for their distributive shares derived from estates in process of probate or accruing -under the provisions of so-called Workmen’s Compensation Laws or other statutes.”* This provision is effective for Italy pursuant to the “ most favored nation clause.” I fail to find in it any limitation that the consul’s right to “ receipt ” is dependent upon the nationality of the decedent. While it may be true that in the cases where payment of distributive shares was made to consuls, the decedents were aliens (Matter of Tartaglio, 12 Misc. 245; Matter of Davenport, 43 id. 573, and Matter of D’Adamo, 94 id. 1), I am inclined to agree with Surrogate Howell that “ there would seem to be no valid reason why his right to protect and defend the rights and interests
44 U. S. Stat. at Large, 2154.