Fontana v. Hynes

The deceased, John Servas, a subject of the kingdom of Greece, died intestate in the city and county of San Francisco on December 2, 1913, leaving estate in said city and county. His next of kin reside in Greece. Two applications for letters of administration on his estate were filed in the probate department of the superior court of the city and county of San Francisco, one by the appellant Richard D. Fontana, as consul of Greece at said city and county and other places, the other by the respondent, M. J. Hynes, as public administrator. The superior court held that the public administrator was entitled to letters of administration and the Greek consul appeals from the order.

The only question presented on this appeal is: Does the treaty between the United States and the kingdom of Greece give the appellant, Richard D. Fontana, as consul of Greece, a right paramount to that of all persons, including the public administrator, to letters of administration upon the estate of a subject of Greece dying intestate in this state 1 The Greek consul contends that it does. He does not rely on any express provision of the treaty between the United States and the kingdom of Greece giving this right but upon a provision of the treaty between the United States and Sweden and the application of the “most favored nation” clause found in the treaty with Greece.

Article XI of the treaty of November 19, 1902, [33 Stats. 2129], between the United States and the kingdom of

Section 14 of the treaty of March 20, 1911, [37 Stats. 1487], between the United States and Sweden reads: “In the event of any citizen of either of two contracting parties dying without will or testament, in the territory of the other contracting party, the Consul-General, Consul, Vice-Consul-General, or the Vice-Consul of the nation of 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 creditors, and, moreover, have the right to be appointed as administrator of such estate. ’ ’

The claim of appellant is that under the provisions of the treaty with Sweden the consular officers of that government are given an exclusive and paramount right to letters of administration on the estates of subjects of that country dying intestate in the United States and that under the “most favored nation” clause in the treaty with Greece he, as consul of that kingdom, is entitled to the same right to administration in similar cases as is granted to consuls of Sweden.

It may be said in approaching the consideration of this clause as was said in Estate of Ghio, 157 Cal. 552 , [ 137 Am. St. Rep. 145 , 37 L. R. A. (N. S.) 549 , 108 Pac. 516 ], which involved an interpretation of the provisions of a treaty between the United States and the Argentine Republic granting to consuls the right to “intervene . . . in the administration” of the estates of their deceased nationals “conformably with the laws of the country,” that “The question presented would directly affect the right of administration upon the estates of all citizens of all the above-named countries residing in this state, of whom there is doubtless a large number. It is also of grave importance because its solution if in favor of the appellant necessarily ascribes to the federal government the intent, by means of its treaty-making power, to materially

It is to be observed also that while in the present ease the claim of the consul of Greece under the provision of the treaty with Sweden is against the public administrator, still if the interpretation which the consul insists shall be given to the language of the treaty is sound, he is not only entitled to letters of administration in preference to the public administrator, but has an absolute paramount right to them as against the resident heirs or next of kin—the resident widow or children—of the deceased. To give the treaty provision the interpretation the Greek consul contends for is to ascribe to the federal government the intention not only to interfere with the generally accorded right of the states to provide for the distribution of estates of persons dying within their jurisdiction but also to interfere in a manner at variance with the generally recognized right of the resident kindred of a deceased to preference in the administration of his estate, and an interpretation which effects such a result should only follow when the language of the provision clearly requires it. It is a vexed question whether power resides in the federal government by treaty or otherwise to abridge the rights of the states over the administration of estates of persons dying and leaving property within their territorial jurisdiction; whether exclusive jurisdiction over that subject is not a right reserved to the states with which the federal government may not interfere. We mention this, not that we consider the question of such power involved here, but to point out that in the absence of any determination of that question by the supreme court of the United States it has been the declared policy of the federal government not to interfere by treaty with the laws of the states in the matter of the administration of estates of deceased persons. Mr. James G. Blaine, as secretary of state, writing to Mr. Abbott in 1890 (For. Bel. of the U. S., 1890, p. 255) relative to a provision of the treaty of 1850 between our government and New Granada (now the United States of Colombia), which provided that consuls of the contracting

Mr. Uhl, acting secretary of state, in response to a note from the Italian ambassador proposing that the consuls of Italy in the United States be authorized to settle the estates of subjects of Italy dying in this country, wrote in 1894: “In reply I beg to say that the United States has never entered into any treaty granting to the consuls of foreign countries in this country such authority as that you suggest should be given to the consuls of Italy. The entire question of the administration, settlement, and distribution of decedents’ estates in this country is under the control of the respective states. . . . These considerations compel me, though with much regret, to dissent from the opinion entertained by you that the Italian consuls should by international agreement be given the authority you demand for them.”

So that in determining whether the language used'in the treaty with Sweden does express a clear intent to grant an exclusive and paramount right of administration to consular officials of the estates of their deceased nationals this declared policy of the federal government must be considered as an element in the solution of the question.

It will be noted on reading the language of the treaty provision with Sweden here involved that it deals with dual rights to be exercised by a consular officer respecting the estate of his deceased national; it refers first to a right on his part to take charge of the property of said deceased pending the appointment of an administrator of his estate and until letters of administration are granted; and, secondly, provides that such consular officer shall have the right to be appointed as administrator of the estate. All this language in the paragraph is preceded by the words “as far as the laws of each country will permit.” This language “as far as the laws of each country will permit” can have but one meaning as far as the language refers to this country,—namely, according to the laws of that particular state in the union within whose jurisdiction the national may have died. There is no federal law for the administration of estates of decedents and necessarily the language used means as the laws of the several states will permit. Between the phrase referred to by Secretary Blaine “consuls shall not discharge these functions in those states where peculiar legislation does not allow it” found in the treaty with Colombia, the phrase ‘‘ conformably with the laws of the country” in the treaty with,the Argentine Republic involved in the Estate of Ghio, 157 Cal. 552 , [ 137 Am. St. Rep. 145 , 37 L. R. A. (N. S.) 549 , 108 Pac. 516 ], and the phrase as far as the laws of each country will permit, ’’ in the treaty with Sweden, there is no substantial difference. The construction given by our court to the phrase “laws of the country” in the Argentine treaty in the Ghio case applies to the same phrase in the treaty provision here under consideration: “ . . . whatever right was given, it was intended to be a right which should conform to the laws of the country, and that, in

We cannot adopt the construction urged on behalf of the Greek consul. According to that construction, while the treaty provision would not authorize the consul to take temporary charge of the property of his deceased national or be appointed special administrator of his estate unless the laws of the state would permit it, still that whether the laws of the state permit it or not, he is under the same provision given an exclusive and paramount right to be appointed administrator. We perceive no warrant for the distinction. The entire paragraph deals with the right to the custody and charge of the estates of their deceased nationals by consuls, preliminary to general administration and general administration itself. The whole matter of administrative right is embraced in a single paragraph. Certainly no valid reason can be assigned why the federal government should have declared an intention only partially to interfere with the laws of the states respecting administration. Why an absolute paramount right to general administration should be conferred on the consul, any

This same treaty provision with Sweden was before the supreme court of Minnesota for construction in the case of Austro-Hungarian Consul v. Westphal, 120 Minn. 122 , [ 139 N. W. 300 ] . In that case the right to letters of administration of the estate of a subject of Austria who had died in Minnesota was claimed by the Austro-Hungarian consul, his claim being based on the same provision of the treaty with Sweden involved here. There the court construed the provision adversely to the right claimed by the consul. In considering the language “as far as the laws of each country will permit” it was said:

‘ ‘ Grammatically it may well be contended that this qualifying clause applied only to the clause with which it is immediately coupled, thus leaving the right to administration without qualification. In view, however, of the presumption so aptly referred to by Mr. Justice Shaw in Estate of Ghio, 157 Cal. 552 , [ 137 Am. St. Rep. 145 , 37 L. R. A. (N. S.) 549 , 108

Pac. 516 ], against any intention on the part of the federal government to invade, hy treaty, the province of state law, in a matter so inherently local, as distinguished from national, and likewise from a consideration of the subject-matter and the provisions of this whole article, and especially the latter part, we have concluded that the right to appointment as administrator is conferred hy such article upon the expressed condition that it can be claimed only ‘as far as the laws of each country will permit. ’ It would certainly seem strange that the right to temporary possession and control until appointment of an administrator should thus be qualified, and the right to be appointed administrator he given in unqualified terms. The former is often no less important than the latter. Likewise, we cannot think, in the absence of clearly expressed intention so to do, that the federal government intended to take the matter of administration of the estate of foreigners entirely out of the control of the states. ’ ’

This is the only decision of a court of final jurisdiction directly involving a consideration of this provision of the treaty with Sweden which has been called to our attention.

In support of the claim of the Greek consul reliance is placed on some decisions of surrogates’ courts in the state of New York and the language used by Mr. Justice Day of the supreme court of the United States in the case of Rocca v. Thompson, 223 U. S. 317 , [ 56 L. Ed. 453 , 32 Sup. Ct. Rep. 207 ]. This last ease was before the said supreme court on a writ of error to this court to review our decision in the Ghio case heretofore referred to. The treaty with Sweden was not involved in the Rocca or Ghio cases. It was only the treaty with the Argentine Republic and involved solely the right of a consul to letters of administration on the estate of his deceased national under the provisions therein giving him the right to “intervene ... in the administration” of the estates of his deceased nationals ‘ ‘ conformably to the laws of the country. ’ ’ In pointing out that the Argentine treaty in conferring the right to “intervene” did not confer the right to administration Mr. Justice Day it is true did say that if it had been the intention under the Argentine treaty to confer 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 declare that purpose in unmistakable terms, and then, by way of illustration, referred to the provision in

As far as the decisions of the surrogate courts of New York are concerned it is not necessary to cite or discuss them. They are not decisions of courts of last resort and prior to the Rocca decision these courts were not in entire harmony. In none of them prior to the decision in the Rocca case was the provision in the treaty with Sweden involved. Subsequent to the decision in the Rocca case this treaty provision with Sweden was invoked in the surrogate courts but in none of the decisions therein was any independent reasoning indulged in

In the case of Holmberg's Estate, 193 Fed. 260 , all that was held was that the consul of Sweden under this treaty provision was eligible to appointment as administrator under subdivision 10 of section 1365 of the Code of Civil Procedure heretofore referred to, and, hence, entitled under the federal law to have delivered to him the effects of a deceased national. The proceeding in that case was ex parte and involved no question of whether the consul was entitled to an exclusive and paramount right to administration.

Under these views the order appealed from appointing the public administrator was correctly made by the superior court and is affirmed.

Melvin, J., and Henshaw, J., concurred.