149 P. 365 | Mont. | 1915
delivered the opinion of the court.
On October 21, 1912, the respondent, C. A. Trucano, was appointed administrator of the estate of August Infelise, who died intestate in Jefferson county. Thereafter and on March 16, 1914, the appellant, Melzner, filed his petition, praying revocation of respondent’s letters and the issuance of letters of administration to himself, basing his petition upon an alleged nomination by the mother and sole heir of the deceased, she residing in Italy. To this the respondent answered, denying the nomination of the appellant by the mother of the deceased, and pleading affirmatively: (1) That on October 29, 1913, the appellant filed a similar petition which, being resisted by the respondent upon the grounds now urged, was after hearing dismissed by the court for want of sufficient evidence to show appellant’s nomination, and, no appeal having been taken from such order, the matters and things sought to be presented by the present petition are res adjudicata; and (2) that Infelise was, at the time of his death, a subject of the kingdom of Italy, whereof the appellant is the consular agent for Montana, entitled by treaty between the United States and Italy to have, and directed by the Italian consul-general to procure, letters of administration upon said estate. To this Melzner demurred, and the court, by a single order made and entered on the 15th day of. May, 1914, overruled said demurrer and dismissed the petition “on the ground that the applicant has no authority to apply for letters because the nominating person has no right, under the showing
1. It is supposed by the appellant that the order in question
Nor is this situation altered because the answer alleges, as the basis for a plea of res adjudñcata, that the appellant did, on
2. The appellant assigns error in the overruling of his demurrer to the respondent’s affirmative defenses. The [7, 8] importanee of this to the case as it now stands is not dear; for, if the proceedings were correctly dismissed for insufficiency in the showing made by the petition, any error committed in. ruling upon the demurrer was harmless. To set the matter at rest, however, and in due respect to the elaborate arguments of counsel upon the subject, we express the view that so far as the defenses based upon the treaty with Italy are concerned, the ruling was not erroneous. Article XVII of that treaty (20 Stat. 732) provides: “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.” Under this “most favored nation” clause, reliance is had upon the provisions of Article X of the treaty between the United States and Paraguay (12 Stat. 1096) and of Article XIV of the treaty between the United States and Sweden (37 Stat. 1487). The stipulation in the treaty with Sweden is that: “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
The appellant contends, however, that even on this theory the respondent could not be appointed, because it is not averred that the Italian consul-general is absent from the United States, or from the district over which he presides, which district includes eleven states of this Union, extending from South Dakota to Arizona. The answer avers that the Italian consul-general resides in Denver, Colorado; that appellant is the Italian consular agent for the state of Montana, appointed to act and acting for the consul-general in the absence of the latter from this state, and that he has been specifically 'directed by the consul-general to apply for these letters of administration. Mamfestly, the treaty does not contemplate that the consul-general shall be personally present in all the states of his district at the same moment of time, but that, as to all matters within his powers, he may act through consular agents when he is not personally present at the place where his consular activities are for the moment
The order appealed from is affirmed.
Affirmed.