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In re the Judicial Settlement of the Account of Davenport

43 Misc. 573 Court N.Y. Sur. Ct. English

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p. 573
Matter of the Judicial Settlement of the Account of William B. Davenport, Public Administrator of the County of Kings, as Administrator of the Goods, Chattels and Credits Which Were of Pietro Florentino, Deceased.
(Surrogates Court, Kings County,
May, 1904.)

Headnote

Aliens — Right of the consul-general of Italy to receive a distributive share of the estate of a deceased resident Italian subject whose next of kin are in Italy.
The consul-general of Italy has a right to receive from the public administrator of Kings county a balance payable by him, as administrator, to the next of kin of an Italian subject who died a resident of that county and it is not necessary that the father and sole next of kin, a resident of Italy, be cited and paid directly.
Proceedings upon che final judicial settlement of the account of the public administrator of Kings county.
Frederick H. Chase, for public administrator.
Ullo & Ruebsamen, for Gustav Tosti, acting consul-general of Italy.

The deceased was an Italian subject, resident of Kings county, where he died; the sole next of kin is the father, residing in Italy. The public administrator was duly appointed, and is about to render his account, by which there will be a balance payable to the next of kin. The Italian consul claims the right to intervene and take posses-v sion of said balance. The same question has been before the court several times for adjudication. Matter of Tartaglio, 12 Misc. Rep. 245 , in which it was held that the consul-general had the right to receive such distributive share. Matter of Fattosini, 33 id. 18, it was held that the consul-general of Italy had the exclusive right to administer "upon Italian subjects’ estates. Matter of Lobrasciano, 38 Misc. Rep. 415 , 77 N. Y. Supp. 1040 , it was held that the consul-general had the sole right to administer. In Matter of Logiorato, 34 Misc. Rep. 31 , 69 N. Y. Supp. 507 , the surrogate of New York county held that the consul-general of Italy was not entitled to administer. These decisions are thus directly contradictory.

I shall not attempt to discuss the question at length and decide which of the two is correct, as in the case before me the question is simply whether the public administrator shall turn over the balance to the consul-general or cite the next of kin and pay him directly.

Even if we give to the word “ intervene ” as used in the treaty with the Argentine Republic the interpretation placed on the same by Judge Thomas, still the right to so “ intervene ” would certainly include the right to receive the property belonging to the alien and hence the money in question here should be paid over to the consul-general.

It is to be regretted that this important question should only arise in such small matters that there is no decision of an appellate court on the matter, and, hence, that such confusion should exist in regard to the same.

Let decree be presented accordingly.

Decreed accordingly.

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